Oswald v. Hamer

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Supreme Court Date: 2019.02.04

11:24:10 -06'00'

Oswald v. Hamer, 2018 IL 122203

Caption in Supreme CONSTANCE OSWALD, Appellant, v. BRIAN HAMER, Director

Court: of Revenue, et al., Appellees.

Docket No. 122203

Filed September 20, 2018

Decision Under Appeal from the Appellate Court for the First District; heard in that

Review court on appeal from the Circuit Court of Cook County, the Hon.

Robert Lopez-Cepero, Judge, presiding.

Judgment Affirmed.

Counsel on Edward T. Joyce and Kenneth Flaxman, of Law Offices of Edward T.

Appeal Joyce & Associates, P.C., and Joan M. Mannix, both of Chicago, for

appellant.

Lisa Madigan, Attorney General, of Springfield (David L. Franklin,

Solicitor General, and Carl J. Elitz, Assistant Attorney General, of

Chicago, of counsel), for appellees.

Mark D. Deaton, of Illinois Health and Hospital Association, of

Naperville, and Steven F. Pflaum, Tonya G. Newman, and Collette A.

Brown, of Neal, Gerber & Eisenberg LLP, of Chicago, for

intervenor-appellee.

Frederic M. Grosser, of Champaign, for amici curiae Cunningham

Township et al.

Julia Rietz, State’s Attorney, of Urbana (Joel D. Fletcher, Assistant

State’s Attorney, of counsel), for amici curiae Champaign County

Treasurer et al.

John M. Izzo and Eugene C. Edwards, of Hauser Izzo, LLC, of

Flossmoor, for amici curiae Illinois Association of School Boards

et al.

Justices JUSTICE NEVILLE delivered the judgment of the court, with

opinion.

Chief Justice Karmeier and Justices Thomas, Kilbride, Garman,

Burke, and Theis concurred in the judgment and opinion.

OPINION

¶1 Section 15-86 of the Property Tax Code (35 ILCS 200/15-86 (West 2012)) provides for a

charitable property tax exemption specifically to eligible not-for-profit hospitals and their

hospital affiliates (hereinafter hospitals). Plaintiff, Constance Oswald, filed an action in the

circuit court of Cook County seeking a judgment declaring that section 15-86 of the Property

Tax Code, on its face, violates section 6 of article IX of the Illinois Constitution (Ill. Const.

1970, art IX, § 6). The circuit court granted summary judgment in favor of defendants Brian

Hamer, Director of Revenue, 1 the Department of Revenue, and the Illinois Hospital

Association. The appellate court affirmed. 2016 IL App (1st) 152691.

¶2 This court allowed plaintiff’s petition for leave to appeal (Ill. S. Ct. R. 315 (eff. Mar. 15,

2016)). For the following reasons, we affirm the judgment of the appellate court.

¶3 I. BACKGROUND

¶4 Section 15-86(c) of the Property Tax Code provides that a hospital applicant “shall be

issued” a charitable property tax exemption if the value of certain qualifying services or

activities provided by the hospital in a given year equals or exceeds the hospital’s estimated

property tax liability for the same year. 35 ILCS 200/15-86(c) (West 2012). In her single-count

complaint, plaintiff alleged that section 15-86(c) commands that the hospital applicant receive

the charitable property tax exemption if the statutory criteria are satisfied. Plaintiff contended

1

Brian Hamer is no longer the director of the Illinois Department of Revenue. Thus, the current

director, Constance Beard, has been substituted as a party by operation of law. See 735 ILCS

5/2-1008(d) (West 2012).

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that section 15-86 was facially unconstitutional because the statute mandates the issuance of

the charitable property tax exemption without consideration of the constitutional requirement

that the subject property be “used exclusively for *** charitable purposes” (Ill. Const. 1970,

art. IX, § 6). Plaintiff sought, inter alia, a judgment declaring that section 15-86 was

“unconstitutional on its face” and an order enjoining defendants from granting any section

15-86 exemptions and requiring defendants to collect property tax from those hospitals that

already had been granted such exemptions.

¶5 The complaint named as defendants the Department of Revenue and its director. The

circuit court granted the Illinois Hospital Association’s petition for leave to intervene as a

defendant. Plaintiff and defendants filed cross-motions for summary judgment contesting

solely the facial constitutionality of section 15-86. The circuit court denied plaintiff’s motion

for summary judgment and granted summary judgment in favor of defendants. The court found

that section 15-86 does not dispense with the Illinois Constitution’s requirements for charitable

property tax exemption but, rather, the Department of Revenue must still evaluate a hospital

applicant’s claim for a section 15-86 exemption under constitutional requirements and

precedent. Also, the court found that plaintiff failed to show that section 15-86 was inherently

flawed in all circumstances. Accordingly, the circuit court concluded that the statute was not

facially unconstitutional.

¶6 The appellate court affirmed. 2016 IL App (1st) 152691. The court rejected plaintiff’s

argument that the legislature intended the word “shall” in section 15-86(c) to be mandatory. Id.

¶ 22. Rather, the court held that the word “shall” is merely directory. Id. ¶ 26. The court

observed that its construction of section 15-86(c) followed case law that construed charitable

property tax exemption statutes alongside the exclusive use requirements of section 6 of article

IX of the Illinois Constitution. Id. ¶¶ 27-36. Alternatively, the appellate court upheld the circuit

court’s conclusion that section 15-86 was facially constitutional because plaintiff failed to

sustain her burden of demonstrating that there was no set of circumstances under which the

statute would be valid. Id. ¶ 47.

¶7 Plaintiff appeals to this court. The Champaign County Treasurer et al., Cunningham

Township et al., and the Illinois Association of School Boards et al. were each granted leave to

submit an amicus curiae brief in support of plaintiff. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).

¶8 II. ANALYSIS

¶9 The ultimate question presented for our review is whether section 15-86 of the Property

Tax Code, on its face, violates section 6 of article IX of the Illinois Constitution. This matter

comes before us in the context of cross-motions for summary judgment. Summary judgment is

appropriate “if the pleadings, depositions, and admissions on file, together with the affidavits,

if any, show that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2012). When parties

file cross-motions for summary judgment, they mutually agree that there are no genuine issues

of material fact and that the case may be resolved as a matter of law. Jones v. Municipal

Employees’ Annuity & Benefit Fund, 2016 IL 119618, ¶ 26; Irwin Industrial Tool Co. v.

Department of Revenue, 238 Ill. 2d 332, 339-40 (2010); Founders Insurance Co. v. Munoz,

237 Ill. 2d 424, 432 (2010). The issues in this case involve statutory construction. Statutory

construction presents questions of law that are appropriate for summary judgment. Hooker v.

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Retirement Board of the Firemen’s Annuity & Benefit Fund, 2013 IL 114811, ¶ 15. Issues

involving statutory construction and summary judgment rulings are reviewed de novo. Id.

Also, the constitutionality of a statute is a question of law reviewed de novo. Irwin Industrial

Tool, 238 Ill. 2d at 340; In re Parentage of John M., 212 Ill. 2d 253, 265 (2004).

¶ 10 In construing section 15-86, we are guided by familiar principles. When presented with an

issue of statutory construction, a court’s primary objective is to ascertain and give effect to the

intent of the legislature. Murphy-Hylton v. Lieberman Management Services, Inc., 2016 IL

120394, ¶ 25. All other rules of statutory construction are subordinate to this cardinal principle.

Chicago Teachers Union, Local No. 1 v. Board of Education of the City of Chicago, 2012 IL

112566, ¶ 15. The most reliable indicator of legislative intent is the language of the statute,

which must be given its plain and ordinary meaning. The statute is viewed as a whole,

construing words and phrases in context to other relevant statutory provisions and not in

isolation. Murphy-Hylton, 2016 IL 120394, ¶ 25; J&J Ventures Gaming, LLC v. Wild, Inc.,

2016 IL 119870, ¶ 25. Each word, clause, and sentence of a statute must be given a reasonable

meaning, if possible, and should not be rendered superfluous. Murphy-Hylton, 2016 IL

120394, ¶ 25; Williams v. Staples, 208 Ill. 2d 480, 487 (2004). Additionally, the court may

consider the reason for the law, the problems sought to be remedied, the purposes to be

achieved, and the consequences of construing the statute one way or another. Murphy-Hylton,

2016 IL 120394, ¶ 25; J&J Ventures Gaming, 2016 IL 119870, ¶ 25. To understand the

purpose and effect of section 15-86, we consider its constitutional and statutory foundations.

¶ 11 A. Article IX of the Illinois Constitution

¶ 12 The constitutional backdrop of charitable property tax exemption legislation in Illinois is

well established. Generally, the Illinois Constitution does not grant power to the legislature but

rather restricts the legislature’s power to act. The State’s inherent power to tax is vested in the

General Assembly. The legislature’s power to tax is plenary and is restricted only by the

federal and state constitutions. Article IX of the 1970 Illinois Constitution (Ill. Const. 1970, art.

IX) generally subjects all real property to taxation. Eden Retirement Center, Inc. v. Department

of Revenue, 213 Ill. 2d 273, 285 (2004) (and cases cited therein). “Under Illinois law, taxation

is the rule. Tax exemption is the exception.” Provena Covenant Medical Center v. Department

of Revenue, 236 Ill. 2d 368, 388 (2010).

¶ 13 However, section 6 of article IX limits the power of the legislature in the area of property

tax exemption in pertinent part as follows:

“The General Assembly by law may exempt from taxation only the property of the

State, units of local government and school districts and property used exclusively for

agricultural and horticultural societies, and for school, religious, cemetery and

charitable purposes.” Ill. Const. 1970, art. IX, § 6.

Section 6 of article IX is not self-executing but authorizes the General Assembly to enact

legislation providing for an exemption. It is permissible, not mandatory, for the legislature to

exercise that authority. Provena, 236 Ill. 2d at 389; North Shore Post No. 21 of the American

Legion v. Korzen, 38 Ill. 2d 231, 233 (1967).2

2

Because section 6 of article IX of the 1970 Illinois Constitution merely rephrases its predecessor

provision in the 1870 Illinois Constitution, “ ‘cases interpreting the permissive legislative exemptions

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¶ 14 Section 6 of article IX divides property that the legislature may exempt from taxation into

two categories: (1) property owned by “the State, units of local government and school

districts” and (2) property used exclusively for the purposes defined in the second clause of the

section. Ill. Const. 1970, art. IX, § 6. By designating the categories of property that the

legislature may exempt from taxation, section 6 of article IX limits the legislature’s authority

to exempt. Eden, 213 Ill. 2d at 286; MacMurray College v. Wright, 38 Ill. 2d 272, 276 (1967).

Where the legislature does choose to provide for an exemption, it must remain within

constitutional limitations. “No other subjects of property tax exemption are permitted. The

legislature cannot add to or broaden the exemptions specified in section 6.” Provena, 236 Ill.

2d at 389; accord Eden, 213 Ill. 2d at 286; Chicago Bar Ass’n v. Department of Revenue, 163

Ill. 2d 290, 297 (1994).

¶ 15 One category of property that the legislature may exempt from taxation is property used for

charitable purposes. “Charitable use is a constitutional requirement. An applicant for a

charitable-use property tax exemption must ‘comply unequivocally with the constitutional

requirement of exclusive charitable use.’ [Citation.]” (Emphasis in original.) Eden, 213 Ill. 2d

at 287. In Methodist Old Peoples Home, this court defined “charity” as “ ‘a gift to be applied

*** for the benefit of an indefinite number of persons, persuading them to an educational or

religious conviction, for their general welfare—or in some way reducing the burdens of

government.’ ” Provena, 236 Ill. 2d at 390-91 (quoting Methodist Old Peoples Home v.

Korzen, 39 Ill. 2d 149, 156-57 (1968)).

¶ 16 Additionally, the term “exclusively used” “means the primary purpose for which property

is used and not any secondary or incidental purpose.” Methodist Old Peoples Home, 39 Ill. 2d

at 157.

¶ 17 This court has repeatedly acknowledged the difficulty of framing a universally applicable

definition of an exclusive charitable use. People ex rel. Nordlund v. Association of the

Winnebago Home for the Aged, 40 Ill. 2d 91, 100 (1968); Methodist Old Peoples Home, 39 Ill.

2d at 156. However, the above-stated “principles constitute the frame of reference to which we

must apply plaintiff’s use of its property to arrive at a determination of whether or not such use

is in fact exclusively for charitable purposes.” Methodist Old Peoples Home, 39 Ill. 2d at 157.

¶ 18 “While the General Assembly has no authority to grant exemptions beyond those

authorized by section 6, it ‘may place restrictions, limitations, and conditions on [property tax]

exemptions as may be proper by general law.’ ” Provena, 236 Ill. 2d at 390 (quoting North

Shore Post No. 21, 38 Ill. 2d at 233). The party claiming an exemption carries the burden of

proving clearly that the use of the subject property is within both the constitutional

authorization and the terms of the statute under which the claim of exemption is made. Eden,

213 Ill. 2d at 288-89 (and cases cited therein); Rogers Park Post No. 108 v. Brenza, 8 Ill. 2d

286, 290 (1956).

¶ 19 B. Section 15-65 Charitable Use Exemption

¶ 20 In conformity with section 6 of article IX, the General Assembly chose to create a

charitable-use property tax exemption but with the additional restriction that the property be

under the Constitution of 1870 are equally relevant to the limits of exemption now constitutionally

permitted.’ ” Eden, 213 Ill. 2d at 286 (quoting Small v. Pangle, 60 Ill. 2d 510, 514 (1975)).

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owned by a statutorily designated organization. Section 15-65 of the Property Tax Code

requires not only that the property be “actually and exclusively used for charitable or

beneficent purposes, and not leased or otherwise used with a view to profit,” but also that the

property be owned by “[i]nstitutions of public charity,” “[b]eneficent and charitable

organizations,” “[o]ld people’s homes,” not-for-profit health maintenance organizations, free

public libraries, or historical societies. 35 ILCS 200/15-65 (2012); see Provena, 236 Ill. 2d at

390. Accordingly, section 15-65 requires two things to qualify for a charitable use property tax

exemption: charitable use and ownership by a charitable organization. Chicago Patrolmen’s

Ass’n v. Department of Revenue, 171 Ill. 2d 263, 270 (1996); Rogers Park Post No. 108, 8 Ill.

2d at 291.

¶ 21 Prior to the enactment of section 15-86 of the Property Tax Code, private hospitals could

apply for property tax exemption as charitable organizations. See, e.g., People ex rel. County

Collector v. Hopedale Medical Foundation, 46 Ill. 2d 450, 453-54 (1970); People ex rel.

Cannon v. Southern Illinois Hospital Corp., 404 Ill. 66, 69-70 (1949) (both collecting cases).

¶ 22 In Provena, this court, with two justices recusing, unanimously concluded that Provena

failed to satisfy the requirements for the charitable use property tax exemption. The plurality

opinion reached this conclusion by recounting that the underlying purpose of charitable

property tax exemption is the benefit that private charity confers upon the public and,

consequently, to some extent, a relief of the State’s burden to care for and advance the interests

of its residents. Provena, 236 Ill. 2d at 394-95 (and cases cited therein). The plurality reasoned:

“Conditioning charitable status on whether an activity helps relieve the burdens on

government is appropriate. After all, each tax dollar lost to a charitable exemption is

one less dollar affected governmental bodies will have to meet their obligations

directly. If a charitable institution wishes to avail itself of funds which would otherwise

flow into a public treasury, it is only fitting that the institution provide some

compensatory benefit in exchange. While Illinois law has never required that there be a

direct, dollar-for-dollar correlation between the value of the tax exemption and the

value of the goods or services provided by the charity, it is a sine qua non of charitable

status that those seeking a charitable exemption be able to demonstrate that their

activities will help alleviate some financial burden incurred by the affected taxing

bodies in performing their governmental functions.” Id. at 395.

After reviewing the record, the plurality determined that “both the number of uninsured

patients receiving free or discounted care and the dollar value of the care they received” were

de minimis. Id. at 397.

¶ 23 However, two members of this court concurred in part and dissented in part. Id. at 411

(Burke, J., concurring in part and dissenting in part, joined by Freeman, J.). The partial dissent

concluded that Provena did not qualify for the charitable exemption based on the actual

ownership of the property. Id. at 411-12. The partial dissent disagreed with the plurality’s

determination that Provena’s charity care was de minimis: “I disagree with this rationale. By

imposing a quantum of care requirement and monetary threshold, the plurality is injecting

itself into matters best left to the legislature.” Id. at 412. “I do not believe that this court can,

under the plain language of section 15-65, impose a quantum of care or monetary requirement,

nor should it invent legislative intent in this regard.” Id. at 415. Having discussed the

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constitutional and statutory backdrop, we now turn to section 15-86 of the Property Tax Code.

¶ 24 C. Section 15-86 Hospital Charitable Use Exemption

¶ 25 In response to this court’s decision in Provena, the General Assembly enacted Public Act

97-688 (eff. June 14, 2012), which, inter alia, added section 15-86 to the Property Tax Code

(35 ILCS 200/15-86 (West 2012)). The legislature expressly discussed Provena and the

legislative intent underlying the statute. The legislature observed that, subsequent to Provena,

“there is considerable uncertainty surrounding the test for charitable property tax exemption,

especially regarding the application of a quantitative or monetary threshold.” Id. § 15-86(a)(1).

The legislature further observed: “It is essential to ensure that tax exemption law relating to

hospitals accounts for the complexities of the modern health care delivery system.” Id.

§ 15-86(a)(3). The legislature expressly codified its intent as follows:

“(5) Working with the Illinois hospital community and other interested parties, the

General Assembly has developed a comprehensive combination of related legislation

that addresses hospital property tax exemption, significantly increases access to free

health care for indigent persons, and strengthens the Medical Assistance program. It is

the intent of the General Assembly to establish a new category of ownership for

charitable property tax exemption to be applied to not-for-profit hospitals and hospital

affiliates in lieu of the existing ownership category of ‘institutions of public charity.’ It

is also the intent of the General Assembly to establish quantifiable standards for the

issuance of charitable exemptions for such property. It is not the intent of the General

Assembly to declare any property exempt ipso facto, but rather to establish criteria to

be applied to the facts on a case-by-case basis.” Id. § 15-86(a)(5).

¶ 26 Section 15-86(c) provides for the hospital charitable property tax exemption in pertinent

part as follows:

“(c) A hospital applicant satisfies the conditions for an exemption under this

Section with respect to the subject property, and shall be issued a charitable exemption

for that property, if the value of services or activities listed in subsection (e) for the

hospital year equals or exceeds the relevant hospital entity’s estimated property tax

liability, as determined under subsection (g), for the year for which exemption is

sought.” (Emphasis added.) Id. § 15-86(c).

Subsection (c) also provides guidelines in specific situations, including where “the relevant

hospital entity is a hospital owner that owns more than one hospital” and where the hospital

applicant is “a multi-state hospital system or hospital affiliate.” Id.

¶ 27 Subsection (e) lists the “services and activities” that are considered in making the

calculations required by subsection (c). These include “[c]harity care,” defined as “[f]ree or

discounted services *** measured at cost”; health services to low-income and underinsured

individuals; subsidy of state or local governments; support for State health care programs for

low-income individuals; subsidy for treating dual-eligibility Medicare/Medicaid patients;

relief of the burden of government-related health care of low-income individuals; and “[a]ny

other activity by the relevant hospital entity that the Department determines relieves the burden

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of government or addresses the health of low-income or underserved individuals.” Id.

§§ 15-86(e)(1)-(7).3

¶ 28 Before this court, plaintiff contends that section 15-86 is facially unconstitutional because

it mandatorily awards a property tax exemption based on satisfaction of its statutory criteria,

without regard to whether the subject property satisfies the constitutional “exclusive charitable

use” requirement. We disagree.

¶ 29 Statutes carry a strong presumption of constitutionality. Walker v. McGuire, 2015 IL

117138, ¶ 12; Elementary School District 159 v. Schiller, 221 Ill. 2d 130, 148 (2006). The

party challenging the validity of a statute has the burden of clearly establishing the alleged

constitutional infirmity. Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 306 (2008);

Parentage of John M., 212 Ill. 2d at 266. It is a court’s duty to construe a statute so as to uphold

its constitutionality if reasonably possible. Further, if a statute’s construction is doubtful, a

court will resolve the doubt in favor of the statute’s validity. Napleton, 229 Ill. 2d at 306-07;

Eden, 213 Ill. 2d at 291-92 (collecting cases).

¶ 30 Plaintiff observes that section 15-86 does not provide, as a condition for the charitable

property tax exemption, that the subject property must be used exclusively for charitable

purposes. Further, according to plaintiff, section 15-86 lacks even “any general reference” to

the constitutional requirement of exclusive charitable use.

¶ 31 Admittedly, neither subsection (a) nor (c) of section 15-86 contains an explicit reference to

the constitutional requirement of exclusive charitable use, as is provided in section 15-65.

While such plain language crystallized the intent of the legislature in enacting section 15-65

(see Eden, 213 Ill. 2d at 291-92 (construing section 15-65)), the legislative intent of section

15-86 is nevertheless readily ascertainable.

¶ 32 We presume that the legislature enacts statutes in light of the constitution and intends to

enact constitutional legislation (Gill v. Miller, 94 Ill. 2d 52, 56 (1983)) and does not intend to

exceed its constitutional limitations (Methodist Old Peoples Home, 39 Ill. 2d at 156;

MacMurray College, 38 Ill. 2d at 277). Accordingly, where a statute does not expressly refer to

an applicable constitutional limitation, “it will be presumed that the legislature intended to

observe the constitution.” North Wichert Drainage District v. Chamberlain, 340 Ill. 644,

648-49 (1930); accord State ex rel. Burton v. Greater Portsmouth Growth Corp., 218 N.E.2d

446, 451 (Ohio 1966) (“the constitutional limitation is by implication a part of the statute, and

the mere failure to set it forth in the statute does not invalidate the provision” “on the basis that

it exceeds or is contrary to the constitutional provision”); 16A Am. Jur. 2d Constitutional Law

§ 169 (1998) (same).

¶ 33 In the case at bar, while section 15-86(c) does not expressly provide that the hospital

charitable property tax exemption is limited to applicants that satisfy the constitutional

requirement of exclusive charitable use, section 6 of article IX of the Illinois Constitution does

say so, and we presume that the legislature intended to comply with this constitutional

limitation. See North Wichert Drainage District, 340 Ill. at 648-49.

3

Also, section 15-86 expressly provides that an otherwise eligible hospital applicant is not

precluded from obtaining or maintaining a property tax exemption pursuant to other provisions of the

Property Tax Code. 35 ILCS 200/15-86(i) (West 2012).

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¶ 34 Beyond this presumption, the legislature stated in section 15-86(a)(5): “It is the intent of

the General Assembly to establish a new category of ownership for charitable property tax

exemption to be applied to not-for-profit hospitals and hospital affiliates in lieu of the existing

ownership category of ‘institutions of public charity’.” 35 ILCS 200/15-86(a)(5) (West 2012).

This is an explicit reference to section 15-65, which in turn contains the explicit reference to

the constitutional limitation of exclusive charitable use. Id. § 15-65. Construing these

provisions together as a whole (Murphy-Hylton, 2016 IL 120394, ¶ 25), we conclude that the

legislature intended to comply with this constitutional limitation.

¶ 35 Nevertheless, plaintiff contends that section 15-86(c), which provides that if the hospital

applicant satisfies the statutory requirements for a hospital charitable property tax exemption,

the hospital “shall be issued a charitable exemption for that property” (emphasis added) (35

ILCS 200/15-86(c) (West 2012)), mandates the issuance of the exemption without

consideration of the constitutional requirement of exclusive charitable use. Indeed, according

to plaintiff, there is “nothing in the language” of section 15-86 suggesting that, if the

requirements of subsection (c) are met, a hospital may nevertheless be refused the hospital

charitable property tax exemption. On the other hand, defendants contend that section 15-86(c)

is not mandatory but, rather, permissive or directory.

¶ 36 Plaintiff and defendants invoke the rules of statutory construction pertaining to the separate

questions of whether a statutory provision is mandatory or permissive and whether the

provision is mandatory or directory. See People v. Delvillar, 235 Ill. 2d 507, 514-15 (2009);

People v. Ousley, 235 Ill. 2d 299, 310-11 (2009); People v. Robinson, 217 Ill. 2d 43, 51-52

(2005). Employing these rules of construction, plaintiff contends that the issue here is whether

section 15-86(c) is mandatory or permissive. She argues that the provision is mandatory and,

consequently, section 15-86 is unconstitutional.

¶ 37 “Legislative intent, however, remains the primary inquiry and controls the court’s

construction of a statute. [Citations.] Traditional rules of statutory construction are merely aids

in determining legislative intent, and those rules must yield to such intent.” Collins v. Board of

Trustees of the Firemen’s Annuity & Benefit Fund, 155 Ill. 2d 103, 111 (1993); see People

ex rel. Cason v. Ring, 41 Ill. 2d 305, 309-10 (1968) (same). We are presented with a situation

where the legislature omitted a specific reference to the constitution’s exclusive charitable use

requirement. In similar circumstances, “courts have allowed the substitution of language in

order to carry out the demonstrable legislative intention, observing, however, when doing so,

that this technique of construction is to be exercised with caution.” Gill, 94 Ill. 2d at 58; see

People ex rel. Barrett v. Anderson, 398 Ill. 480, 485 (1947) (same). “[W]here applying

language literally in a clause of an otherwise coherent statute would frustrate the spirit of the

statute and the intent of the legislature, language may be disregarded, modified or supplied to

give effect to the legislative design.” Gill, 94 Ill. 2d at 59; see Klein v. Department of

Registration & Education, 412 Ill. 75, 86 (1952) (same).

¶ 38 In the case at bar, the legislature was certainly aware of section 6 of article IX of the

constitution and its requirement of exclusive charitable use, and it intended to enact a

constitutional hospital charitable property tax exemption. To construe subsection (c) as

plaintiff argues would cast doubt on the constitutionality of section 15-86, which, as we have

concluded, is a result the legislature could not have intended. “Accordingly, an interpretation

under which the statute would be considered constitutional is preferable to one that would

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leave its constitutionality in doubt.” Braun v. Retirement Board of the Firemen’s Annuity &

Benefit Fund, 108 Ill. 2d 119, 127 (1985) (collecting cases). We therefore construe the word

“shall” in section 15-86(c) to be permissive and not mandatory. This reading of section

15-86(c) would avoid the possible constitutional infirmity, and that is the construction we

adopt.

¶ 39 Therefore, a hospital applicant seeking a section 15-86 charitable property tax exemption

must document the services or activities meeting the statutory criteria. Additionally, the

hospital must show that the subject property meets the constitutional test of exclusive

charitable use.

¶ 40 Significantly, plaintiff’s action is framed solely as a facial challenge to the constitutional

validity of section 15-86 of the Property Tax Code. As such, we have before us only the statute

itself. Reno v. Flores, 507 U.S. 292, 300-01 (1993). A facial challenge to the constitutionality

of a statute is the most difficult challenge to make successfully. A statute is facially invalid

only if no set of circumstances exists under which the statute would be valid. Napleton, 229 Ill.

2d at 305-06; Parentage of John M., 212 Ill. 2d at 269; see United States v. Salerno, 481 U.S.

739, 745 (1987). The fact that the statute could be found unconstitutional under some set of

circumstances does not establish its facial unconstitutionality. Napleton, 229 Ill. 2d at 306;

Parentage of John M., 212 Ill. 2d at 269; In re M.T., 221 Ill. 2d 517, 536-37 (2006). Thus, if

any situation exists where a statute could be validly applied, a facial challenge must fail.

People v. Rizzo, 2016 IL 118599, ¶ 24; M.T., 221 Ill. 2d at 537 (and cases cited therein).

¶ 41 Several of plaintiff’s supporting amici invite this court to discard the “no set of

circumstances” test in determining the facial constitutionality of legislation. However, plaintiff

herself does not raise this issue. An amicus takes the case as it finds it, with the issues framed

by the parties. Accordingly, this court has repeatedly rejected attempts by amici to assert issues

not raised by the parties. Bruns v. City of Centralia, 2014 IL 116998, ¶ 15 n.1 (citing Karas v.

Strevell, 227 Ill. 2d 440, 450-51 (2008)). Consequently, we decline this invitation.

¶ 42 In the case at bar, plaintiff concedes before this court, as she did before the appellate court

(2016 IL App (1st) 152691, ¶ 47), that it is hypothetically possible for a hospital applicant to

satisfy the requirements of section 15-86(c), i.e., that the hospital services and activities listed

in subsection (e) equal or exceed the hospital’s estimated property tax liability, and for the

hospital to use its property exclusively for charitable purposes as required under section 6 of

article IX of the Illinois Constitution. We cannot say that a hospital applicant, per se, may

never satisfy both the statutory requirements of section 15-86 and the constitutional

requirement of exclusive use for charitable purposes. See, e.g., Chicago Bar Ass’n, 163 Ill. 2d

at 300.

¶ 43 While it is possible that specific future applications of section 15-86 may produce actual

constitutional problems, it will be time enough to consider any such problems when they arise.

See Napleton, 229 Ill. 2d at 306; Parentage of John M., 212 Ill. 2d at 269 (both citing Village of

Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 504 (1982)). Here, we

deal only with the statute on its face. So considered, we hold that plaintiff has failed to

establish the facial invalidity of section 15-86 of the Property Tax Code.

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¶ 44 III. CONCLUSION

¶ 45 For the foregoing reasons, the judgment of the appellate court is affirmed.

¶ 46 Affirmed.

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