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:
"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.
¶ 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 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
under the circumstances to defend the statute, ordinance, regulation or other law challenged." Ill. S. Ct. R. 18(c) (eff. Sept. 1, 2006).
¶ 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.
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.
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). --------
¶ 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.