NO. 5-00-0109

	IN THE APPELLATE COURT

	OF ILLINOIS

	FIFTH DISTRICT

LEE O. GRIFFIN,   				   

          Plaintiff-Appellee,		    

		v.					   

MARVIN GOLDENHERSH, DEL GOLDENHERSH,   

and GOLDENHERSH & GOLDENHERSH, a	    

Professional Corporation,		    

	 	Defendants-Appellants.	)

)

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)		Appeal from

	Circuit Court of 

	St. Clair County

	No. 98L554A

	Honorable

	Lloyd A. Cueto,

	Judge Presiding.

_________________________________________________________________

		JUSTICE KNECHT delivered the opinion of the court:

		In June 1998, plaintiff, Lee O. Griffin, filed suit

against defendants, Marvin Goldenhersh (Marvin), Del Goldenhersh,

and the professional corporation of Goldenhersh & Goldenhersh,

for damages resulting from Marvin's legal representation of

plaintiff in a 1981 criminal matter.  Defendants filed a motion

to dismiss plaintiff's cause of action as time-barred, which the

trial court denied.  Defendants brought this interlocutory

appeal, in which the trial court certified the following ques

tions (155 Ill. 2d R. 308):  

			"[(1)] Whether the applicable statute of limitations bars a cause of action for legal

malpractice brought in June 1998 by an attor

ney's former client who was found guilty of

murder in 1981 and incarcerated, and whose

conviction was later overturned on the basis of ineffective assistance of counsel and he was then released from prison in October

1996[.]

			[(2)] Whether the applicable statute of

repose bars a cause of action for legal mal

practice brought in June 1998 by an attor

ney's former client who was found guilty of

murder in 1981 and incarcerated, and whose

conviction was later overturned on the basis

of ineffective assistance of counsel and he

was then released from prison in October

1996[.] 

			[(3)] Whether application of the statute

of repose to bar a claim for legal malprac

tice by an inmate who was estopped from

bringing a cause of action for legal malprac

tice while he was incarcerated violates

plaintiff's rights under the equal protection

and due process clauses of both the Illinois

and [United States] Constitutions[.]"   

		We answer the second question in the affirmative and

the first and third questions in the negative.

	I. BACKGROUND

		On June 29, 1998, plaintiff filed a two-count complaint

for legal malpractice, consisting of negligence and breach of contract claims, against defendants for Marvin's representation

of plaintiff in a 1981 criminal matter.   

	A. Plaintiff's Conviction   

		In February 1981, four people were repeatedly shot. 

One person survived and was later the State's key witness. 

Within hours of the shooting, plaintiff was arrested.  People v. Griffin, 124 Ill. App. 3d 169, 170, 463 N.E.2d 1063, 1064 (1984) (Griffin II).  Plaintiff originally retained Ralph Derango to represent him.  Griffin II, 124 Ill. App. 3d at 171, 463 N.E.2d at 1064.  Several days later, Jimmie Lee Smith was arrested for

the same shootings and retained Marvin to represent him.  After

plaintiff's family discharged Derango, Marvin undertook the joint

representation of plaintiff and Smith.  Griffin II, 124 Ill. App. 3d at 171, 463 N.E.2d at 1065.  (In a deposition relating to the

habeas corpus petition, Marvin claims he undertook representation of plaintiff prior to representing Smith.  Griffin v. McVicar, 84 F.3d 880, 881 n.1 (7th Cir. 1996).) 

		In a hearing on a motion to continue, the trial court

probed for a possibility of a conflict in the joint representa

tion, and Marvin stated no conflict existed.  Prior to jury

selection, the State's Attorney again questioned whether a

conflict existed.  Griffin II, 124 Ill. App. 3d at 171, 463 N.E.2d at 1065.  Neither Marvin nor the trial court responded to

the State's Attorney's question, and the case proceeded to trial

without further inquiry.  McVicar, 84 F.3d at 882.

		In June 1981, a jury found plaintiff guilty of three

counts of murder and one count of armed violence.  The trial

court sentenced plaintiff to three concurrent 40-year prison

terms for the murder convictions and a concurrent 30-year prison

term for the armed violence conviction.  Griffin II, 124 Ill. App. 3d at 170, 463 N.E.2d at 1064.  

	B.  History of Plaintiff's Ineffective Assistance 

	of Counsel Claims

		On direct appeal of his criminal conviction, plaintiff

argued ineffective assistance of counsel based on his trial

counsel's representation of both plaintiff and Smith as having

precluded counsel from pursuing the theory most advantageous to

plaintiff.  People v. Griffin, 124 Ill. App. 3d 119, 127-28, 463 N.E.2d 1055, 1061-62 (1984) (Griffin I).  The Fifth District found plaintiff failed to show ineffectiveness and affirmed

plaintiff's conviction (Griffin I, 124 Ill. App. 3d at 128, 463 N.E.2d at 1062), and the Supreme Court of Illinois denied leave to appeal (People v. Griffin, 101 Ill. 2d 571 (1984) (No. 60655)).  

		In August 1982, plaintiff filed a postconviction

petition under paragraph 122-1 of the Post-Conviction Hearing Act

(Ill. Rev. Stat. 1981, ch. 38, par. 122-1), again arguing inef

fective assistance of counsel based on the conflict of interest

arising out of the joint representation.  Griffin II, 124 Ill. App. 3d at 176, 463 N.E.2d at 1068.  The trial court denied plaintiff's petition, and plaintiff appealed.  Griffin II, 124 Ill. App. 3d at 177, 463 N.E.2d at 1069.  On appeal, the Fifth

District found ineffective assistance of counsel based on trial

counsel's conflict of loyalties between plaintiff and Smith,

reversed plaintiff's conviction, and remanded the case to the

trial court for a new trial.  Griffin II, 124 Ill. App. 3d at 181-83, 463 N.E.2d at 1072-73, rev'd, 109 Ill. 2d 293, 487 N.E.2d 594 (1985).  The supreme court reversed the Fifth District and affirmed the trial court's judgment denying the postconviction

petition, reasoning plaintiff's joint alibi testimony refuted the

conflict.  Griffin II, 109 Ill. 2d at 308-09, 487 N.E.2d at 605.  

		In March 1991, plaintiff filed a writ of habeas corpus pursuant to section 2254 of Title 28 of the United States Code

(28 U.S.C. §2254 (1982)) in the United States District Court for

the Southern District of Illinois.  The district court denied the

petition, and plaintiff appealed.  Griffin v. Camp, 40 F.3d 170, 171 (7th Cir. 1994).  In November 1994, the Seventh Circuit

remanded the case to the district court for clarification because

of inconsistencies between the district court's factual findings

and the record.  Griffin v. Camp, 40 F.3d at 174.  On May 4, 1995, the district court found that an actual conflict of inter

est existed in Marvin's representation of plaintiff and Smith. 

Griffin v. Haws, No. 91-228, slip order at 13 (S.D. Ill. May 4, 1995) (unpublished order).  Accordingly, the district court

overturned plaintiff's conviction and granted plaintiff's peti

tion for writ of habeas corpus.  Griffin v. Haws, slip order at 13-14.  The State appealed.  On May 21, 1996, the Seventh Circuit

affirmed the district court's judgment and issued a writ stating

plaintiff is to be released from custody, "unless the State of

Illinois elects to retry [plaintiff] within [120] days from the

issuance of this [c]ourt's final mandate."  McVicar, 84 F.3d at 891.  On September 23, 1996, the Seventh Circuit denied the

State's petition for rehearing and on September 27, 1996, issued

its final mandate.  Plaintiff was released from prison on October

9, 1996.  On March 17, 1997, the United States Supreme Court

denied the State's petition for certiorari.  McVicar v. Griffin, 520 U.S. 1139, 137 L. Ed. 2d 364, 117 S. Ct. 1288 (1997).  

	C. Defendants' Motion to Dismiss

		In August 1998, defendants filed a motion to dismiss

plaintiff's complaint pursuant to section 2-619 of the Code of

Civil Procedure (Code) (735 ILCS 5/2-619(a)(5), (a)(9) (West

1998)), arguing the statute of limitations bars plaintiff's cause

of action.  Plaintiff responded, asserting the statute of limita

tions did not begin to run until, at the earliest, his release

from prison.  In reply, defendants contended even if plaintiff

filed suit within the statute of limitations, the statute of

repose bars it (735 ILCS 5/13-214.3 (West 1996)). 

		In May 1999, the trial court denied defendants' motion,

stating application of the statute of repose here violates

plaintiff's equal protection and due process rights under the

United States and Illinois Constitutions (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2).  Defendants then moved for a

ruling on whether the statute of limitations had time-barred the

cause.  In July 1999, the trial court held the cause of action

was timely because plaintiff filed within two years of the

issuance of the Seventh Circuit's mandate for his release, i.e., September 27, 1996. 

		Defendants moved for certification of questions for

interlocutory appeal pursuant to Rule 308(a) (155 Ill. 2d R.

308(a)).  In February 2000, the trial court found its May 12,

1999, and July 26, 1999, orders involve questions of law as to

which substantial ground for difference of opinion exists, and an

immediate appeal may materially advance ultimate termination of

litigation.  This appeal followed.

	II. ANALYSIS

	A. Statute of Limitations

		In June 1981, when plaintiff was convicted, legal

malpractice claims fell under the Code's general statute of

limitations and were to "be commenced within 5 years next after

the cause of action accrued."  Ill. Rev. Stat. 1981, ch. 110,

par. 13-205.  The legislature amended the statute of limitations

applicable to legal malpractice claims, effective January 1,

1991, reducing the statute of limitations from five years to two

years and imposing a six-year statute of repose.  Pub. Act 86-

1371, §1, eff. January 1, 1991 (1990 Ill. Laws 2842, 2842-43)

(adding 735 ILCS 5/13-214.3 (West 1996)).  The new section, section 13-214.3(f) of the Code (735 ILCS 5/13-214.3(f) (West

1996)), provides in pertinent part:  "The provisions of Public

Act 86-1371 creating this [s]ection apply to all causes of action

accruing on or after its effective date."  (Emphasis added.)  

As stated, the effective date was January 1, 1991.

		To determine the applicable statute of limitations, we

must ascertain when plaintiff's cause of action accrued.  Plain

tiff argues his case accrued when the Seventh Circuit issued its

final mandate on September 27, 1996.  Defendants argue the case

accrued when plaintiff was found guilty in June 1981.  We agree

with plaintiff.

		This court has held a legal malpractice action accrues

when the client discovers, or should have discovered, the facts

establishing the elements of the cause of action.  Kohler v. Woollen, Brown & Hawkins, 15 Ill. App. 3d 455, 460, 304 N.E.2d 677, 681 (1973).  An action for legal malpractice consists of the

following elements:  (1) an attorney-client relationship; (2) a

duty arising out of that relationship; (3) a breach of that duty;

(4) causation; and (5) actual damages.  Land v. Auler, 186 Ill. App. 3d 382, 384, 542 N.E.2d 509, 511 (1989).  In a legal mal

practice action against a criminal defense attorney, the plain

tiff must also prove his innocence of the crime for which the

defendant represented him.  Kramer v. Dirksen, 296 Ill. App. 3d 819, 822, 695 N.E.2d 1288, 1290 (1998); Moore v. Owens, 298 Ill. App. 3d 672, 674-75, 698 N.E.2d 707, 709 (1998).  Further, actual damages are not presumed, and thus the plaintiff must affirma

tively plead and prove he suffered injuries resulting from the

legal malpractice.  Where the mere possibility of harm exists or damages are otherwise speculative, actual damages are absent, and

no cause of action for malpractice yet exists.  Lucey v. Law Offices of Pretzel & Stouffer, Chartered, 301 Ill. App. 3d 349, 353, 703 N.E.2d 473, 477 (1998).

		In Johnson v. Halloran, 312 Ill. App. 3d 695, 696, 728 N.E.2d 490, 491-92 (2000), the State charged the plaintiff with

aggravated criminal sexual assault in August 1991 and the trial

court appointed the public defender to represent the plaintiff. 

Following a bench trial, the trial court found the plaintiff

guilty.  Johnson, 312 Ill. App. 3d at 697, 728 N.E.2d at 492.  His conviction was later vacated on March 8, 1996, pursuant to a

postconviction petition based on DNA results.  Johnson, 312 Ill. App. 3d at 697, 728 N.E.2d at 492.  In 1993, before his release,

the plaintiff sent letters to the Cook County public defender and

the Attorney Registration and Disciplinary Commission (ARDC)

complaining about his legal representation.  Johnson, 312 Ill. App. 3d at 697, 728 N.E.2d at 492.  In November 1996, the plain

tiff filed a legal malpractice claim against several Cook County

public defenders.  Johnson, 312 Ill. App. 3d at 696, 728 N.E.2d at 491.  The defendants argued the cause of action was time-

barred because the action accrued in 1993 when plaintiff wrote

the letters to ARDC.  Johnson, 312 Ill. App. 3d at 700, 728 N.E.2d at 494.  The First District held the action accrued on

March 8, 1996, when the plaintiff's criminal conviction was

overturned because at that point all of the elements of his cause

of action for malpractice were present.  Johnson, 312 Ill. App. 3d at 700, 728 N.E.2d at 494.

		One reason for following Johnson is "under Illinois law a plaintiff must prove his innocence before he may recover for

his criminal defense attorney's malpractice."  Kramer, 296 Ill. App. 3d at 822, 695 N.E.2d at 1290.  While a legal malpractice

plaintiff must prove his innocence, he is collaterally estopped

from arguing facts established and issues decided in a criminal

proceeding.  Kramer, 296 Ill. App. 3d at 823, 695 N.E.2d at 1291.  The elements of a legal malpractice action and the elements of

ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 688, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064

(1984), are the same for the purposes of collateral estoppel. 

Kramer, 296 Ill. App. 3d at 823-24, 695 N.E.2d at 1291.  Thus, before a plaintiff's conviction is overturned, the plaintiff is

collaterally estopped from arguing his innocence, leaving him

with no cause of action.

		The highest courts of other states have adopted rules

similar to the one in Johnson.  In Shaw v. Alaska, 816 P.2d 1358, 1360 (Alaska 1991), the Supreme Court of Alaska held obtaining

postconviction relief is an element of legal malpractice in

criminal cases, and the statute of limitations is tolled until such relief is granted.  One reason for the holding was the

requirement of postconviction relief promotes judicial economy

because many of the issues litigated in the pursuit of

postconviction relief would be duplicated in the later legal

malpractice action.  Shaw, 816 P.2d at 1361.  Moreover, the requirement established a bright-line test in determining when

the statute began to run.  The court found it desirable to allow a criminal defendant with a valid postconviction claim to pursue

that without the distraction of filing a legal malpractice claim. 

Shaw, 816 P.2d at 1361.

		The Supreme Court of Oregon in Stevens v. Bispham, 316 Or. 221, 238, 851 P.2d 556, 566 (1993), held in order for a

person to bring a legal malpractice claim against his criminal

defense attorney, the person must, in addition to alleging duty,

its breach, and causation, allege "harm," meaning the person has

been exonerated of the criminal offense through reversal on

direct appeal, postconviction relief, or otherwise.  One reason

for the holding was the inappropriateness of treating a convicted

offender as having been "harmed" in a legally cognizable way by

the conviction while it is still valid.  Stevens, 316 Or. at 232, 851 P.2d at 562.  The court also relied on the extensive statu

tory provisions for the protection of convicted offenders. 

Stevens, 316 Or. at 229-31, 851 P.2d at 561-62.  This scheme demonstrates the public policy to treat any person convicted of a

criminal offense as validly convicted until the person's convic tion has been overturned.  Stevens, 316 Or. at 230, 851 P.2d at 561.

		In Britt v. Legal Aid Society, Inc., 95 N.Y.2d 443, 445, 741 N.E.2d 109, 110 (2000), the New York Court of Appeals

held that the plaintiff's cause of action for legal malpractice

against his criminal defense counsel could not have accrued until

the criminal proceedings against the plaintiff were terminated.

Like Illinois law, New York law requires the plaintiff in a legal malpractice claim to assert his innocence before he can pursue a

claim against his criminal defense attorney for legal malprac

tice.  Britt, 95 N.Y.2d at 445, 741 N.E.2d at 110.  Because a plaintiff must assert his innocence in a legal malpractice action

against defense counsel, no cause of action will lie so long as

the determination of his guilt of the underlying offense remains

undisturbed.  Britt, 95 N.Y.2d at 446, 741 N.E.2d at 111.  A cause of action cannot accrue until all the elements of the tort

can be truthfully alleged in a complaint.  Britt, 95 N.Y.2d at 447, 741 N.E.2d at 112.  

		Accordingly, we hold that a legal malpractice cause of

action does not accrue until the plaintiff's conviction is

overturned. 

		Defendants argue if the cause of action does not accrue

until the plaintiff's conviction is overturned, then this court

has effectively held imprisonment is a disability tolling the

statute of limitations.  The legislature, with the 1991 amend ment, removed such a disability (Pub. Act 86-1329, §4, eff.

January 1, 1991 (1990 Ill. Laws 2591, 2594)).  However, former

section 13-211 of the Code (Ill. Rev. Stat. 1981, ch. 110, par.

13-211) tolled the statute of limitations for an action specified

in sections 13-201 through 13-212 of the Code (Ill. Rev. Stat.

1981, ch. 110, pars. 13-201 through 13-212), that accrued while a

person was imprisoned on a criminal charge.  Thus, a holding that

plaintiff's cause of action did not accrue until his conviction

was vacated would, in effect, only toll the statute of limita

tions for legal malpractice claims against criminal defense

attorneys, not all claims provided by sections 13-201 through 13-

212 of the Code.   

		Here, the parties do not agree as to the date when

plaintiff's conviction was overturned.  Plaintiff argues his

conviction was overturned on September 27, 1996, i.e., the date of the Seventh Circuit's final mandate.  Defendants argue May 4,

1995, the date the conviction was overturned by the district

court, would be the appropriate date.  We agree with plaintiff.

		As demonstrated by the facts in this case, a reviewing

court's judgment overturning a plaintiff's conviction may be

reversed by another court.  Here, the Fifth District's judgment

overturning plaintiff's conviction was stayed pending appeal, and

the Supreme Court of Illinois reversed the Fifth District and

affirmed plaintiff's conviction.  See Griffin II, 124 Ill. App. 3d 169, 463 N.E.2d 1063, rev'd, 109 Ill. 2d 293, 487 N.E.2d 594.   Because of "[t]he policy reasons underlying the unique nature of

legal malpractice claims arising out of criminal proceedings"

(Britt, 95 N.Y.2d at 445, 741 N.E.2d at 110), a cause of action accrues when the reviewing court gives a final mandate that is

not stayed pending an appeal to another court.  Because plain

tiff's legal malpractice action accrued on September 27, 1996,

section 13-214.3 of the Code (735 ILCS 5/13-214.3 (West 1996)) is

the applicable statute of limitations.

		Section 13-214.3(b) of the Code (735 ILCS 5/13-214.3(b) 

(West 1996)) provides a legal malpractice action "must be com

menced within 2 years from the time the person bringing the

action knew or reasonably should have known of the injury for

which damages are sought."  A plaintiff is injured for the

purposes of legal malpractice when he has suffered a loss for

which he may seek damages.  Brite Lights, Inc. v. Gooch, 305 Ill. App. 3d 322, 325, 713 N.E.2d 155, 157 (1999).  Damages are

speculative when uncertainty exists as to the fact of the dam

ages.  Brite Lights, 305 Ill. App. 3d at 325, 713 N.E.2d at 158.  Because plaintiff's damages were speculative until September 27,

1996, the date of the Seventh Circuit's final mandate, the two-

year statute of limitations did not begin to run until September

27, 1996, and thus plaintiff's June 28, 1998, complaint was

within the statute of limitations.  Accordingly, we answer the

first question in the negative.       

	B. Statute of Repose

		The statute of repose applies to all causes of action

accruing on or after the effective date of Public Act 86-1371,

January 1, 1991.  Because we find plaintiff's cause of action

accrued on the date the Seventh Circuit issued its final mandate,

September 27, 1996, the statute of repose applies to plaintiff's

case.  Under the statute of repose, a legal malpractice action

"may not be commenced in any event more than 6 years after the

date on which the act or omission occurred."  735 ILCS 5/13-

214.3(c) (West 1996).  Thus, applying the statute of repose of

section 13-214.3(c), plaintiff's claim was time-barred in June

1987, prior to that section's effective date.

		Where causes of action are instantaneously barred by

the statute of repose, courts have given plaintiffs a "reasonable

period" after the effective date of the act creating the statute

of repose to file a cause of action.  Goodman v. Harbor Market, Ltd., 278 Ill. App. 3d 684, 694, 663 N.E.2d 13, 20 (1995).  The reasonable period of time in which a plaintiff may bring suit for

injuries sustained before the effective date of a statute of

repose can never, however, be more than the statute-of-repose period itself.  Goodman, 278 Ill. App. 3d at 694, 663 N.E.2d at 21.  Contrary to plaintiff's assertions, the reasonable period is

computed from the effective date of the statute, not the accrual date of the cause of action.  Goodman, 278 Ill. App. 3d at 694, 663 N.E.2d at 21.  Unlike with statutes of limitations, most

courts apply the statute-of-repose period as the reasonable period for filing after the statute-of-repose provision became

effective.  See Goodman, 278 Ill. App. 3d at 695, 663 N.E.2d at 21 (applying the six-year statute-of-repose period as the reason

able period after the effective date of the statute of repose in

which to file a legal malpractice claim).  Under the "reasonable period," plaintiff had three months from the date his cause of

action accrued, September 27, 1996, before his claim was time-

barred on January 1, 1997.  Thus, the statute of repose time-bars

plaintiff's suit of June 29, 1998, and we must answer the second

question in the affirmative.

			C. Constitutionality of the Statute of Repose

		All legislative enactments enjoy a heavy presumption of

constitutionality.  In re Marriage of Lappe, 176 Ill. 2d 414, 422, 680 N.E.2d 380, 384 (1997).  The party challenging a statute

bears the burden of clearly establishing that it is unconstitu

tional.  Courts have a duty to sustain legislation whenever possible and resolve all doubts in favor of constitutional

validity.  Lappe, 176 Ill. 2d at 422, 680 N.E.2d at 384-85.  The certified question asks whether the statute of repose as applied

in this case violates plaintiff's due process and equal protec

tion rights.

	1. Equal Protection

		The constitutional right to equal protection of the law

guarantees that the State must treat similarly situated persons

in a similar manner.  People v. Kimbrough, 163 Ill. 2d 231, 237, 644 N.E.2d 1137, 1141 (1994).  The guarantee of the equal protec

tion 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

legislation.  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

statute's validity.  Under the rational basis test, the statutory classification is constitutional if it bears a rational basis to

a legitimate state interest.  Kimbrough, 163 Ill. 2d at 237, 644 N.E.2d at 1141.

		Plaintiff argues the statute of repose deprives those

in prison for more than six years of a cause of action, while

allowing those in prison less than six years the right to bring a

claim.  He contends the policy reasons behind permitting stale

claims are inapplicable in criminal defense legal malpractice

actions.  According to plaintiff, better files and evidence are

maintained in criminal cases than civil cases.  Such a claim is

without merit.  Plaintiff cites no statute requiring State's

Attorneys and criminal defense counsel to preserve evidence or

maintain files indefinitely.  Discovery of evidence would still

be difficult over a lengthy period of time in a criminal defense

malpractice claim.    

		Additionally, plaintiff contends this court should be

cautious in finding the statute of repose constitutional in this case because the "injury" occurred within the legal system

itself.  This court has declared statutes of limitations are not meant to shield the wrongdoer; rather, they provide an opportu nity to investigate factors upon which liability is based while

the evidence is still discoverable.  Milnes v. Hunt, 311 Ill. App. 3d 977, 981, 725 N.E.2d 779, 782 (2000).  The same is true

for statutes of repose.    

		Clearly, the rationale behind statutes of repose is to

prevent stale claims.  The legislature determined legal malprac

tice claims are stale after six years.  Thus, the classification

between those imprisoned for less than six years and those

imprisoned more than six years is rationally related to a legiti

mate state interest.

	2. Due Process

		As with an equal protection challenge, a court will

uphold legislation attacked on due process grounds if that

legislation bears a rational relationship to a legitimate state

goal.  In re K.C., 186 Ill. 2d 542, 551, 714 N.E.2d 491, 496 (1999).  Plaintiff argues he was denied due process of law

because his claim was barred before the statute of limitations

began to run.  Defendants argue the statute of repose is consti

tutional as applied to plaintiff.  In support of their argument,

defendants cite Serafin v. Seith, 284 Ill. App. 3d 577, 579, 672 N.E.2d 302, 305 (1996), a legal malpractice case on representa tion in a civil matter.   

		In Serafin, 284 Ill. App. 3d at 587, 672 N.E.2d at 310, the plaintiff argued that the legal malpractice statute of repose

was unconstitutional because it was retroactive in its effect and

would bar a cause of action before it had ripened.  The First

District held the statute was constitutional, finding the six-

year statute of repose was reasonably related to the statute's

purpose, i.e., to impose a cap on the applicability of the discovery rule in order for the outer limit to terminate the

possibility of liability after a definite period of time, regard

less of a potential plaintiff's lack of knowledge of his cause of

action.  Serafin, 284 Ill. App. 3d at 588, 672 N.E.2d at 310-11.  The fact that a repose provision may bar an action before it is

discovered is an accidental rather than necessary consequence. 

Serafin, 284 Ill. App. 3d at 588, 672 N.E.2d at 310.   

		Defendants also cite Anderson v. Wagner, 79 Ill. 2d 295, 305-09, 402 N.E.2d 560, 564-67 (1979), a medical malpractice

case in which the Supreme Court of Illinois explained the need

for a statute of repose.  The court recognized the increased use

of the "discovery rule" in medical malpractice cases, leading to

statutes of limitations that no longer constituted statutes of

repose for the defendant.  Anderson, 79 Ill. 2d at 305, 402 N.E.2d at 564.  Under the discovery rule, a malpractice claim did

not expire at the end of the statutory period (Anderson, 79 Ill. 2d at 305, 402 N.E.2d at 564), thus creating a limitations period

without a limit (Goodman, 278 Ill. App. 3d at 691, 663 N.E.2d at 19).  In response, the legislature amended the statute of limita

tions and added a statute of repose.  Anderson, 79 Ill. 2d at 302, 402 N.E.2d at 563.  The effect of the statute of repose was

to preclude certain causes of action before they were discovered. 

Goodman, 278 Ill. App. 3d at 691, 663 N.E.2d at 19.  While such a result seems harsh and unfair, the statute of repose does not

violate due process.  Anderson, 79 Ill. 2d at 312, 402 N.E.2d at 568.

		Plaintiff argues none of the cases cited by defendants

bar a cause of action before the action accrued or existed. 

However, in explaining the difference between a statute of repose

and a statute of limitations, the First District stated:

		" 'A statute of repose *** limits the time

within which an action may be brought and is

not related to the accrual of any cause of action.  The injury need not have occurred, much less have been discovered.' "  (Emphasis

added.)  Goodman, 278 Ill. App. 3d at 691, 663 N.E.2d at 18, quoting Bradway v. American National Red Cross, 992 F.2d 298, 301 (11th Cir. 1993).

		Further, plaintiff attempts to distinguish the cases

cited by defendants by arguing the present case does not involve

the discovery rule.  While plaintiff's case is different because

of the doctrine of collateral estoppel, the same principles behind the statute of repose apply.  The need still exists for a

time limit on the period in which one can sue because proof

becomes difficult with the passage of time.  See Mega v. Holy Cross Hospital, 111 Ill. 2d 416, 425, 490 N.E.2d 665, 670 (1986) (statutes of limitations bar causes of actions brought after a

period of time the legislature has determined makes the problems

of proof so difficult as to pose a threat of injustice).  As with

equal protection, the statute of repose is rationally related to

a legitimate state interest.

	III. CONCLUSION

		Accordingly, we answer the second question in the

affirmative and the first and third questions in the negative.

		Questions answered.

		MYERSCOUGH, J., concurs.

		COOK, J., specially concurs.	

		JUSTICE COOK, specially concurring:

		The statute of repose (735 ILCS 5/13-214.3(c) (West

1996)) applies to this case because no cause of action had

accrued before the statute's effective date, January 1, 1991.

Under the statute of repose, a legal malpractice action may not

be commenced more than six years after "the act or omission

occurred."  A cause of action may be barred under the statute of

repose even before the cause of action has accrued.  Meyers v. Underwood, 316 Ill. App. 3d 970, 986, 738 N.E.2d 118, 129-30 (2000).  The alleged act or omission here occurred at the trial,

which was in the 1980s.  Plaintiff had a full six years to comply

with the statute of repose after it was enacted January 1, 1991,

but did not file suit until June 29, 1998.  This action is barred

by the statute of repose.  Statutes of repose are constitutional.

Serafin, 284 Ill. App. 3d at 587, 672 N.E.2d at 310.

	NO. 5-00-0109

	IN THE

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

___________________________________________________________________________

LEE O. GRIFFIN, 					)	Appeal from

	Plaintiff-Appellee, 			)	Circuit Court of

	v.							)	St. Clair County

MARVIN GOLDENHERSH, DEL GOLDENHERSH, 	)	No. 98L554A

and GOLDENHERSH & GOLDENHERSH, a		)

Professional Corporation, 			)	Honorable

	Defendants-Appellants.			)	Lloyd A. Cueto, 

								)	Judge Presiding.

___________________________________________________________________________

Opinion Filed:	July 3, 2001

___________________________________________________________________________

Justices:	Honorable James A. Knecht, J. 

	Honorable Sue E. Myerscough, J., concurs

	Honorable Robert W. Cook, J., specially concurs.

___________________________________________________________________________

Attorneys	Brian W. Bell, Sheryl A. Pethers, Swanson, Martin & Bell,

for	One IBM Plaza, Suite 2900, Chicago, IL  60611; Theodore R.

Appellants	Harvey, Jr., Freeark, Harvey, Mendillo, Dennis, Wuller & 

	Cain, 115 West Washington Street, P.O,. B Box 546, Belleville,

	IL  62222

___________________________________________________________________________

Attorneys	George R. Ripplinger, Gerorge Ripplinger and Associates,

for	2215 West. Main Street, Belleville, IL  62226-6692

Appellee	

___________________________________________________________________________