The opinion
2018 IL 123025
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 123025)
SARAHI VASQUEZ GONZALEZ, as Administrator of the Estate of Rodolfo Chavez Lopez,
Deceased, Appellee, v. UNION HEALTH SERVICE, INC., et al., Appellant.
Opinion filed November 29, 2018.
CHIEF JUSTICE KARMEIER delivered the judgment of the court, with
opinion.
Justices Thomas, Kilbride, Garman, Burke, Theis, and Neville concurred in the
judgment and opinion.
OPINION
¶1 Sarahi Vasquez Gonzalez, in her capacity as administrator of the estate of
Rodolfo Chavez Lopez, also known as Juan Aguilar, brought this wrongful death
and survival action in the circuit court of Cook County to recover damages from
Union Health Service, Inc. (UHS), and numerous other defendants based on
defendants’ alleged negligence in providing medical treatment to Mr. Aguilar, the
decedent, while he was under their care. UHS moved to dismiss the claims against
it pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS
5/2-619(a)(9) (West 2016)) on the grounds that it is immune from suit under section
26 of the Voluntary Health Services Plans Act (215 ILCS 165/26 (West 2016)).
Following a brief hearing at which no evidence or arguments were presented, the
circuit court issued a lengthy written order denying UHS’s motion. The basis given
by the circuit court for its decision was that a 1988 amendment to section 26 was
“unconstitutional in violation of U.S. Const., art. IV, § 1 & amd. XIV; Ill. Const.,
art. 1, § 2; & Ill. Const. art. IV, § 13” because it left intact UHS’s statutory
immunity under the law while eliminating that immunity for all other similarly
situated entities. UHS now appeals that decision directly to our court “pursuant to
Supreme Court Rule 302(a)(1) and pursuant to the Court’s supervisory authority.”
It asks that we reverse the circuit court’s order, enter an order declaring the 1988
amendment to be constitutional, and remand to the circuit court with instructions to
grant UHS’s motion to dismiss based on statutory immunity.
¶2 BACKGROUND
¶3 UHS is a “health services plan corporation” organized under the Voluntary
Health Services Plan Act (Act) (215 ILCS 165/1 et seq. (West 2016)) for “the
purpose of establishing and operating a voluntary health services plan and
providing other medically related services” (id. § 2(a)). In 2014, while under the
care of UHS physicians, nurses, and technicians, Mr. Aguilar died following a
lymph node biopsy. Sarahi Vasquez Gonzalez (plaintiff), in her capacity as
administrator of Aguilar’s estate, filed a multicount complaint under the Wrongful
Death Act (740 ILCS 180/0.01et seq. (West 2016)) and Survival Act (755 ILCS
5/27-6 (West 2016)) to recover damages from UHS and others involved in
Aguilar’s care. The complaint alleged that Aguilar had received negligent
treatment and asserted that UHS should be held liable under the doctrine of
respondeat superior.
¶4 UHS moved to dismiss the counts against it pursuant to section 2-619(a)(9) of
the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2016)) on the grounds
that it was immune from liability under section 26 of the Act (215 ILCS 165/26
(West 2016)). That statute provides:
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“A health services plan corporation incorporated prior to January 1, 1965,
operated on a not for profit basis, and neither owned or controlled by a hospital
shall not be liable for injuries resulting from negligence, misfeasance,
malfeasance, nonfeasance or malpractice on the part of any officer or employee
of the corporation, or on the part of any person, organization, agency or
corporation rendering health services to the health services plan corporation’s
subscribers and beneficiaries.” Id.
¶5 Plaintiff opposed UHS’s motion, arguing that plan should not be allowed to
claim immunity under section 26 because it had purchased liability insurance and
thereby waived any immunity it might otherwise have enjoyed. Plaintiff also
asserted that the statutory immunity conferred by section 26 violates special
legislation and equal protection principles and is therefore unconstitutional. The
basis for that claim was that the language in the statute limiting its applicability to
plans “incorporated prior to January 1, 1965, operated on a not for profit basis, and
neither owned or controlled by a hospital,” which was added by an amendment in
1988, left UHS’s immunity intact while stripping it from all other similarly situated
entities, a result for which it contended there is no rational basis.
¶6 Following a brief hearing at which no evidence or legal arguments were
presented, the circuit court entered a written order denying UHS’s motion to
dismiss. The court rejected plaintiff’s argument that the plan’s purchase of liability
insurance waived its statutory immunity. It concluded, however, that UHS could
not avail itself of that immunity because the 1988 amendment to the statute
“purposefully protected and continues to protect a class of only one—UHS.” In the
court’s view, “[c]ontinuing to provide absolute statutory immunity to a class of one
is simply not rationally related to any legitimate state interest. The 1988
amendment to section 26 is, therefore, unconstitutional because it violates the
Illinois constitution’s prohibition against special legislation.” Based on this
conclusion, the court went on to hold that “the 1988 amendment to the [Voluntary
Health Services Plans Act] section 26 is unconstitutional in violation of U.S.
Const., art. IV, § 1 & amd. XIV; Ill. Const., art. 1, § 2; & Ill. Const., art. IV, § 13.”
This appeal followed.
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¶7 ANALYSIS
¶8 Before proceeding, we must first consider whether we have authority to do so.
The parties themselves are content to have us review the circuit court’s order on the
merits. No jurisdictional challenge has been raised by either side. That, however, is
of no consequence. Lack of subject-matter jurisdiction is not subject to waiver and
cannot be cured through the consent of the parties. In re M.W., 232 Ill. 2d 408, 417
(2009). Our court has an independent duty to ensure that jurisdiction is proper.
Clemons v. Mechanical Devices Co., 202 Ill. 2d 344, 349 (2002).
¶9 The jurisdiction of this court is delineated by article VI, section 4, of the Illinois
Constitution of 1970 (Ill. Const. 1970, art. VI, § 4). Article VI, section 4(b) (Ill.
Const. 1970, art. VI, § 4(b)), authorizes direct appeals to our court as of right from
circuit court judgments imposing a sentence of death. It also authorizes us to
provide by rule for direct appeals from circuit courts in other cases.
¶ 10 UHS relies on Illinois Supreme Court Rule 302(a)(1) (eff. Oct. 4, 2011) to
support direct appeal from the circuit court in the case before us now. That reliance
is misplaced. Although Rule 302(a)(1) does authorize direct appeal to our court in
cases where a circuit court has held invalid a statute of the United States or of this
state, the rule applies, by its terms, to “[a]ppeals from final judgments of circuit
courts.” (Emphasis added.) Id. No final judgment has been entered in this case. This
appeal arises from an order denying a motion to dismiss. The denial of a motion to
dismiss is not a final determination. It is an interlocutory ruling and not subject to
review under Rule 302(a)(1). Desnick v. Department of Professional Regulation,
171 Ill. 2d 510, 540 (1996) (citing Chapman v. United Insurance Co. of America,
234 Ill. App. 3d 968, 970 (1992), and Pizzato’s Inc. v. City of Berwyn, 168 Ill. App.
3d 796, 798 (1988) (denial of motion to dismiss on basis of governmental immunity
not final and appealable order)).
¶ 11 When a circuit court has found a statute unconstitutional in the context of an
interlocutory order, our court has relaxed the finality requirement of Rule 302(a)(1)
and entertained the appeal directly in two limited circumstances. Neither is present
here.
¶ 12 The first situation where we have reviewed an interlocutory order under Rule
302(a)(1) is where the order falls within one of the various rules we have
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promulgated specifically authorizing appeals from orders other than final
judgments. See, e.g., id. at 516 (allowing direct appeal of order granting
preliminary injunction, normally appealable as of right to the appellate court under
Illinois Supreme Court Rule 307 (eff. Aug. 1, 1989)); Garcia v Tully, 72 Ill. 2d 1, 7
(1978) (allowing direct appeal of order dissolving preliminary injunction, also
normally appealable as of right to the appellate court under Illinois Supreme Court
Rule 307 (eff. Jan. 1, 1970)). This is not such a case. There is no comparable
jurisdictional “hook” here. The circuit court’s order is not subject to any of the rules
we have enacted to permit review of interlocutory orders.
¶ 13 The second circumstance in which we have relaxed the normal finality
requirement is where the appeal arose from an order granting summary judgment in
a declaratory action challenging the validity of a statute. While entry of summary
judgment technically left unresolved a claim for affirmative relief (and meant that
the judgment was not fully final), we nevertheless accepted direct review because
the constitutionality of the statute was the central issue in the case, the trial court’s
ruling was effectively final as to that core issue, the unresolved issue was unlikely
to affect the ultimate disposition of the litigation, and dismissal of the appeal would
have served no purpose other than to delay ultimate resolution of the case’s pivotal
question. Big Sky Excavating, Inc. v. Illinois Bell Telephone Co., 217 Ill. 2d 221,
233-34 (2005).
¶ 14 None of those circumstances is present here either. This is an action for
damages, not a proceeding to declare a statute invalid. The circuit court’s ruling on
the validity of the statute in this case merely affects the right of one of numerous
defendants to raise a particular affirmative defense. With regard to the litigation as
a whole, that is a peripheral issue, not a pivotal one. Indeed, depending on how the
litigation plays out, the issue may prove entirely irrelevant. If plaintiff fails to make
her case and the jury returns a verdict in favor of defendants on the merits, there
will be no need to address the question of whether UHS could also have escaped
liability based on the immunity conferred by section 26 of the Act, as amended in
1988. The matter will be moot.
¶ 15 Thirty years ago there was a case, Bilyk v. Chicago Transit Authority, 125 Ill.
2d 230 (1988), in which our court did entertain an interlocutory appeal under Rule
302(a) from a decision by the circuit court that denied a motion to dismiss on the
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grounds that the statute on which dismissal was sought violated various provisions
of the Illinois and United States Constitutions, including Illinois’s prohibition
against special legislation. Aware of the similarity between the procedural posture
of the appeal in Bilyk and the matter before us here, counsel for UHS suggested at
oral argument that our decision in Bilyk supports the exercise of our jurisdiction in
this case. It does not. A judicial opinion is authority only for what is actually
decided in the case. In re N.G., 2018 IL 121939, ¶ 67. The problem of finality and
the issue of jurisdiction were not raised or addressed in Bilyk. They were
completely overlooked. An oversight is not a holding.
¶ 16 As an alternative basis for reviewing the merits of the circuit court’s order,
UHS argues that this case presents an appropriate occasion for the exercise of the
court’s supervisory authority. On this point, UHS is on firmer ground. Article VI,
section 16, of the Illinois Constitution (Ill. Const. 1970, art. VI, § 16) invests our
court with general administrative and supervisory authority over Illinois’s judicial
system. That authority is unlimited in extent and hampered by no specific rules. “It
is bounded only by the exigencies which call for its exercise.” (In re Estate of Funk,
221 Ill. 2d 30, 97-98 (2006)). “An order *** need not be final and appealable in
order that this court exercise its supervisory authority.” People v. Heddins, 66 Ill.
2d 404, 406 (1977). Even when a circuit court’s ruling does not satisfy the normal
finality requirements, this court may elect to exercise its supervisory authority to
intercede. Id. at 406-07 (dismissing appeal but entering supervisory order to direct
circuit court to vacate clearly erroneous interlocutory order).
¶ 17 While our supervisory authority may be expansive, it is invoked with restraint.
That a lower court has declared a statute unconstitutional does not, by itself, furnish
sufficient justification for us to review that decision in the exercise of our
supervisory authority where, as here, jurisdiction is otherwise lacking. The Carle
Foundation v. Cunningham Township, 2017 IL 120427, ¶ 34. We exercise our
supervisory authority only under exceptional circumstances. People ex rel. Birkett
v. Bakalis, 196 Ill. 2d 510, 515 (2001). More specifically, we have held that
supervisory orders will be used “ ‘only if the normal appellate process will not
afford adequate relief and the dispute involves a matter important to the
administration of justice, or where intervention is necessary to keep an inferior
court or tribunal from acting beyond the scope of its authority.’ ” People v. Salem,
2016 IL 118693, ¶ 21 (quoting In re J.T., 221 Ill. 2d 338, 347 (2006)). We have also
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found it appropriate to exercise our supervisory authority to retain an appeal of an
interlocutory order denying a motion to dismiss where we had erroneously
docketed the appeal under Rule 302(a)(1), the appeal had been pending for a
significant length of time, and there was an important constitutional question to be
decided. Dornfeld v. Julian, 104 Ill. 2d 261, 265 (1984); see also Hardin v. Village
of Mount Prospect, 99 Ill. 2d 96, 101 (1983) (supervisory authority invoked to
review denial of motion to dismiss based on importance of constitutional question
involved); Crane Paper Stock Co. v. Chicago & Northwestern Ry. Co., 63 Ill. 2d
61, 67-68 (1976) (length of time case pending without a hearing on the merits and
possibility that decision might avoid improvident use of taxpayer money warranted
exercise of supervisory authority to review otherwise nonappealable interlocutory
orders).
¶ 18 After due consideration, we have concluded that this is an appropriate case to
invoke our supervisory authority rather than simply dismissing the appeal. We have
reached this conclusion not because the substantive constitutional principles
underlying the circuit court’s ruling have particular significance. For reasons that
will be set out below, those principles turn out to be immaterial to resolution of the
case. Rather, we have elected to proceed because, in our view, the circuit court’s
ruling has demonstrated a need for us to once again provide guidance on a matter of
considerable importance to the administration of justice: the procedures that must
be followed and the standards that should be applied before a circuit court declares
a statute unconstitutional. As the following discussion will explain, those
procedures and standards were not followed here. The circuit court’s order
declaring the 1988 amendment to section 26 of the Act (215 ILCS 165/26 (West
2016)) unconstitutional and denying UHS’s motion to dismiss must therefore be
vacated, and the cause must be remanded to the circuit court for further
proceedings.
¶ 19 Statutes carry a strong presumption of constitutionality. Oswald v. Hamer,
2018 IL 122203, ¶ 29. Improvident or unnecessary declarations that a statutory
enactment is constitutionally infirm compromise the stability of our legal system.
Trent v. Winningham, 172 Ill. 2d 420, 425 (1996). Moreover, when a circuit court
prematurely invalidates legislation that might ultimately be disposed of on a
nonconstitutional basis, “the effect is to circumvent the normal appellate process
and require this court to accept cases it might otherwise decline to hear.” Hearne v.
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Illinois State Board of Education, 185 Ill. 2d 443, 455 (1999) (citing Trent, 172 Ill.
2d at 425). We have therefore admonished circuit courts that “cases should be
decided on nonconstitutional grounds whenever possible, reaching constitutional
issues only as a last resort” (In re E.H., 224 Ill. 2d 172, 178 (2006)) and only if
necessary to decide the case (People v. Hampton, 225 Ill. 2d 238, 243-44 (2007)).
The Carle Foundation, 2017 IL 120427, ¶ 34.
¶ 20 To help insure that circuit courts follow these principles and do not “ ‘lightly or
cavalierly declare unconstitutional that which the representatives of the people
have seen fit to enact’ ” (People v. Cornelius, 213 Ill. 2d 178, 190 (2004) (quoting
People v. Conlan, 189 Ill. 2d 286, 291-92 (2000))), our court has formulated a set of
requirements circuit courts must follow before declaring a statute unconstitutional.
Those requirements are set forth in Illinois Supreme Court Rule 18 (eff. Sept. 1,
2006). Rule 18 expressly provides that “[a] court shall not find unconstitutional a
statute, ordinance, regulation or other law, unless” its order or opinion
“clearly sets forth the specific ground(s) for the finding of unconstitutionality,
including:
(1) the constitutional provision(s) upon which the finding of
unconstitutionality is based;
(2) whether the statute, ordinance, regulation or other law is being
found unconstitutional on its face, as applied to the case sub judice, or both;
(3) that the statute, ordinance, regulation or other law being held
unconstitutional cannot reasonably be construed in a manner that would
preserve its validity;
(4) that the finding of unconstitutionality is necessary to the decision or
judgment rendered, and that such decision or judgment cannot rest upon an
alternative ground; and
(5) that the notice required by Rule 19 has been served, and that those
served with such notice have been given adequate time and opportunity
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under the circumstances to defend the statute, ordinance, regulation or other
law challenged.” Ill. S. Ct. R. 18(c) (eff. Sept. 1, 2006). 1
¶ 21 The order entered by the circuit court in this case included the information
required by subsection (c)(5) with regard to compliance with Rule 19. It also set
forth the constitutional provisions upon which the finding of unconstitutionality
was based, as required by subsection (c)(1). Specifically, it found that “the 1988
amendment to *** section 26 [of the Act] is unconstitutional in violation of U.S.
Const., art. IV, § 1 & amd. XIV; Ill. Const., art. 1, § 2; & Ill. Const. art. IV, § 13.”
In addition, and in accordance with subsection (c)(2), the circuit court’s order
indicated that it was finding the 1988 amendment to section 26 of the Act to be
unconstitutional both on its face and as applied. The order did not, however, make a
finding as required by subsection (c)(3) that the statute cannot reasonably be
construed in a manner that would preserve its validity. The issue was not even
addressed. Moreover, the circuit court failed to make the finding specified by
subsection (c)(4), namely that “the finding of unconstitutionality [was] necessary to
the decision or judgment rendered, and that such decision or judgment cannot rest
upon an alternative ground.” Ill. S. Ct. R. 18(c)(4) (eff. Sept. 1, 2006).
¶ 22 Our court has made clear that any circuit court judgment that does not include
the finding required by subsection (c)(4) or fails to comply with any of the other
provisions of Rule 18 may be summarily vacated and remanded. In re E.H., 224 Ill.
2d at 178; Bryant v. Board of Election Commissioners of City of Chicago, 224 Ill.
2d 473, 477 (2007) (per curiam); Ill. S. Ct. R. 302(c)(2) (eff. Oct. 4, 2011) . That
course of action is appropriate here. Not only does the circuit court’s order fail to
comply with the formal, technical provisions of Rule 18 by omitting required
findings, it is patently incompatible with basic principles governing when and
under what circumstances a statute may be declared unconstitutional. That is so for
several reasons.
1
Under Rule 19 (Ill. S. Ct. R. 19 (eff. Sept. 1, 2006)), a litigant challenging the constitutionality
of a statute, ordinance, administrative regulation, or other law affecting the public interest must
serve notice of the challenge on the Attorney General or other affected agency or officer in order to
give that agency or officer the opportunity to intervene for the purpose of defending the law or
regulations challenged. Village of Lake Villa v. Stokovich, 211 Ill. 2d 106, 115 (2004).
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¶ 23 First, as noted above, the circuit court’s order denying UHS’s motion to dismiss
declared that the 1988 amendment to section 26 ran afoul of numerous
constitutional provisions, both federal and state. These included article IV, section
1, of the United States Constitution, which provides that “Full Faith and Credit
shall be given in each State to the public Acts, Records, and judicial Proceedings of
every other State” (U.S. Const., art. IV, § 1); the fourteenth amendment to the
United States Constitution, which addresses the rights to due process and equal
protection of the laws, among various other topics (U.S. Const., amend. XIV);
article I, section 2, of the Illinois Constitution of 1970, which also addresses due
process and equal protection (Ill. Const. 1970, art. I, § 2); and article IV, section 13,
of the Illinois Constitution of 1970, dealing with special legislation (Ill. Const.
1970, art. IV, § 13). The circuit court’s substantive discussion, however, dealt
exclusively with why it believed the challenged amendment violated the Illinois
Constitution’s special legislation provision. It gave no legal basis and provided no
explanation for invalidating the amendment under the other state and federal
constitutional articles and amendments it ultimately invoked. In so doing, it
engaged in precisely the type of unsupported, scattershot constitutional
adjudication that our precedent has condemned and Rule 18 was intended to curb.
People v. Chairez, 2018 IL 121417, ¶¶ 11-13; People v. Rizzo, 2016 IL 118599,
¶ 27; People v. Schweihs, 2015 IL 117789, ¶ 17; Cornelius, 213 Ill. 2d at 188-90;
In re Parentage of John M., 212 Ill. 2d 253, 266 (2004); Ill. S. Ct. R. 18, Committee
Comment (adopted July 27, 2006).
¶ 24 Second, the circuit court’s order found the 1988 amendment to section 26 of the
Act constitutionally invalid, not only on its face, but also as applied to UHS. This
court has repeatedly held and recently reiterated, however, that because as-applied
constitutional challenges are necessarily dependent on the specific facts and
circumstances of the case, a court is not capable of making an as-applied
determination of unconstitutionality when there has been no evidentiary hearing
and no findings of fact. Absent a sufficient evidentiary record, any finding that a
statute is unconstitutional as applied is premature. People v. Harris, 2018 IL
121932, ¶ 39; People v. Minnis, 2016 IL 119563, ¶ 19; Rizzo, 2016 IL 118599,
¶ 26; People v. Mosley, 2015 IL 115872, ¶¶ 47-48; In re Parentage of John M., 212
Ill. 2d at 268.
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¶ 25 Such is the case here. Pivotal to plaintiff’s challenge to the 1988 amendments to
section 26 of the Act are a range of factual issues, including changes in UHS’s
operations since the Act was initially enacted and the number of entities that could
still avail themselves of the Act’s immunity after the 1988 amendments took effect.
These issues are vigorously contested. Plaintiff asserts, for example, that UHS is
the only remaining entity that remains eligible to claim the immunity, while UHS
argues that two additional entities also still qualify. The factual record necessary to
properly resolve these questions has not yet been developed. At the time the circuit
court made its ruling, discovery was still underway, and no evidentiary hearing had
yet been held. Under these circumstances, the circuit court could not properly
conclude that the 1988 amendment was unconstitutional as applied, and this court
cannot now properly assess whether plaintiff is able to meet her substantial burden
of establishing that the amendment fails to pass constitutional muster under the
particular circumstances presented by this case. People ex rel. Hartrich v. 2010
Harley-Davidson, 2018 IL 121636, ¶ 32.
¶ 26 But there is a third and even more fundamental problem with the circuit court’s
decision to address the constitutionality of the 1988 amendment to section 26 of the
Act: resolution of that question is not, in fact, necessary to disposition of this case.
Even if the circuit court were correct in finding the 1988 amendment fatally infirm
under the special legislation provision of the Illinois Constitution, the effect of such
a finding would not be to abolish the statutory immunity conferred under the Act.
Rather, it would be to leave the law in force as it was prior to its amendment.
Cookson v. Price, 239 Ill. 2d 339, 341 (2010); Fumarolo v. Chicago Board of
Education, 142 Ill. 2d 54, 113 (1990); People v. Gersch, 135 Ill. 2d 384, 390
(1990). The statute would simply revert back to its original version. Ready v.
United/Goedecke Services, Inc., 232 Ill. 2d 369, 381 (2008).
¶ 27 This is fatal to plaintiff’s position because UHS was immune under the prior
version of the law as well. As UHS has pointed out, the 1988 amendment had no
effect on its immunity at all. The amendment merely removed statutory immunity
from other entities not involved in this litigation. UHS’s position remained
unchanged.
¶ 28 The former version of the law has been upheld by our appellate court against
constitutional attack. Brown v. Michael Reese Health Plan, Inc., 150 Ill. App. 3d
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959 (1986). The constitutional analysis undertaken by the circuit court in this case
did not purport to reach a contrary conclusion. Plaintiff challenged, and the circuit
court addressed, only the 1988 amendment. Accordingly, even if that amendment
were unconstitutional, UHS would be still entitled to claim immunity from
plaintiff’s claims under the version of section 26 of the Act as it existed before.
Based on that immunity, it would, in turn, still be entitled to dismissal of plaintiff’s
claims against it. For that reason, addressing the constitutionality of the 1988
amendment was not and is not necessary as a “last resort” for resolution of this
case. It is not necessary at all. The issue is irrelevant. We shall therefore vacate the
court’s order denying UHS’s motion to dismiss on the grounds that the 1988
amendment to the Act is unconstitutional and remand for further proceedings.
People v. Jackson, 2013 IL 113986, ¶ 14.
¶ 29 CONCLUSION
¶ 30 For the foregoing reasons, we dismiss UHS’s appeal under Rule 302(a). In the
exercise of our supervisory authority, we vacate the order of the circuit court
denying UHS’s motion to dismiss on the grounds that the 1988 amendment to
section 26 of the Act is unconstitutional, and we remand this cause to the circuit
court for further proceedings consistent with our opinion.
¶ 31 Appeal dismissed.
¶ 32 Supervisory order entered.
¶ 33 Cause remanded.
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