{ "id": 544894, "name": "In re MARRIAGE OF LARRY LAPPE and LYNN LAPPE, Appellee (The Illinois Department of Public Aid, Appellant)", "name_abbreviation": "In re Marriage of Lappe", "decision_date": "1997-05-01", "docket_number": "No. 81605", "first_page": "414", "last_page": "443", "citations": [ { "type": "official", "cite": "176 Ill. 2d 414" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "152 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5603292 ], "year": 1992, "pin_cites": [ { "page": "509" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/152/0504-01" ] }, { "cite": "162 Ill. 2d 15", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477539 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "18" }, { "page": "18", "parenthetical": "although circuit court's order stated that statute was unconstitutional \"as applied\" to the plaintiff, effect of order was to declare provision unconstitutional on its face and jurisdiction under Rule 302(a)(1) was proper" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/162/0015-01" ] }, { "cite": "166 Ill. 2d 165", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 198916 ], "year": 1995, "pin_cites": [ { "page": "169", "parenthetical": "this court assumed jurisdiction under Rule 302(a)(1) of appeal from circuit court order which held that certain statutory provisions were unconstitutional \"as applied\" to the plaintiff" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/166/0165-01" ] }, { "cite": "118 Ill. 2d 203", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3188348 ], "year": 1987, "pin_cites": [ { "parenthetical": "this court assumed jurisdiction under Rule 302(a)(1) of appeal from circuit court order which held that a statute was unconstitutional \"as applied\" to the practice of acupuncture" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/118/0203-01" ] }, { "cite": "98 Ill. 2d 478", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3121664 ], "year": 1983, "pin_cites": [ { "page": "479-80", "parenthetical": "this court held that jurisdiction was proper under Rule 302(a)(1) even though the circuit court did not directly state that the statute was unconstitutional because it appeared from the order that the circuit court found the statute invalid" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/98/0478-01" ] }, { "cite": "79 Ill. 2d 383", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3070747 ], "year": 1980, "pin_cites": [ { "page": "385-86", "parenthetical": "this court held that it had jurisdiction under Rule 302(a)(1" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/79/0383-01" ] }, { "cite": "124 Ill. 2d 265", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3217607 ], "weight": 7, "year": 1988, "pin_cites": [ { "page": "272" }, { "page": "272" }, { "page": "270" }, { "page": "277" }, { "page": "269-70" }, { "page": "277" }, { "page": "270" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/124/0265-01" ] }, { "cite": "116 Ill. 2d 186", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5543542 ], "year": 1987, "pin_cites": [ { "page": "216" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/116/0186-01" ] }, { "cite": "149 Ill. 2d 331", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5599286 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "338" }, { "page": "338" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/149/0331-01" ] }, { "cite": "113 Ill. 2d 219", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3173826 ], "year": 1986, "pin_cites": [ { "page": "227" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/113/0219-01" ] }, { "cite": "42 U.S.C. \u00a7 301", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1994, "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "42 U.S.C. \u00a7 601", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1994, "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "42 U.S.C. \u00a7 602", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 5, "year": 1994, "pin_cites": [ { "page": "(a)(27)" }, { "page": "(a)(27)" }, { "page": "(a)(27)" } ], "opinion_index": 0 }, { "cite": "829 F. Supp. 989", "category": "reporters:federal", "reporter": "F. 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App. 3d 360", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5534192 ], "year": 1981, "pin_cites": [ { "page": "366" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/92/0360-01" ] }, { "cite": "81 Ill. B.J. 638", "category": "journals:journal", "reporter": "Ill. B.J.", "year": 1993, "pin_cites": [ { "page": "643" } ], "opinion_index": 0 }, { "cite": "54 Ill. 2d 448", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2933819 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "466" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/54/0448-01" ] }, { "cite": "908 S.W.2d 673", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10019972 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/sw2d/908/0673-01" ] }, { "cite": "583 So. 2d 663", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7506002 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/so2d/583/0663-01" ] }, { "cite": "207 Cal. App. 3d 1150", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 6038434 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/cal-app-3d/207/1150-01" ] }, { "cite": "255 Cal. Rptr. 304", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1989, "opinion_index": 0 }, { "cite": "144 Wis. 2d 364", "category": "reporters:state", "reporter": "Wis. 2d", "case_ids": [ 8668457 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/wis-2d/144/0364-01" ] }, { "cite": "388 N.W.2d 376", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10654083 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nw2d/388/0376-01" ] }, { "cite": "562 F. Supp. 311", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3558152 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/f-supp/562/0311-01" ] }, { "cite": "136 Wis. 2d 1", "category": "reporters:state", "reporter": "Wis. 2d", "case_ids": [ 8668549 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/wis-2d/136/0001-01" ] }, { "cite": "828 S.W.2d 368", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9972574 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/sw2d/828/0368-01" ] }, { "cite": "290 S.C. 542", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 2170087 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/sc/290/0542-01" ] }, { "cite": "258 Ill. App. 3d 851", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2883767 ], "year": 1994, "pin_cites": [ { "page": "856" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/258/0851-01" ] }, { "cite": "152 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5603292 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "508-09" }, { "page": "509" }, { "page": "509" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/152/0504-01" ] }, { "cite": "162 Ill. 2d 15", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477539 ], "year": 1994, "opinion_index": 1, "case_paths": [ "/ill-2d/162/0015-01" ] } ], "analysis": { "cardinality": 1562, "char_count": 53574, "ocr_confidence": 0.811, "pagerank": { "raw": 3.040419807601827e-07, "percentile": 0.8552224473318715 }, "sha256": "6cb0030d5677c03ffe72f1c35059543ab436c62a6edcb4b689630a5e4da6b6cb", "simhash": "1:d6bafb67dca3c4f0", "word_count": 8663 }, "last_updated": "2023-07-14T21:02:28.362206+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re MARRIAGE OF LARRY LAPPE and LYNN LAPPE, Appellee (The Illinois Department of Public Aid, Appellant)." ], "opinions": [ { "text": "JUSTICE BILANDIC\ndelivered the opinion of the court:\nThe appellant, the Illinois Department of Public Aid (the Department), filed a motion to intervene in a dissolution action pending between Larry and Lynn Lappe in the circuit court of Madison County. The Department sought to intervene on behalf of Larry Lappe, the custodial parent of the divorced couple\u2019s unemancipated minor child, pursuant to sections 10 \u2014 1 and 10 \u2014 10 of the Public Aid Code (305 ILCS 5/10 \u2014 1, 10 \u2014 10 (West 1994)). The Department also filed a petition on Larry\u2019s behalf to establish a child support obligation on the part of the appellee, Lynn Lappe. Lynn filed objections to the Department\u2019s motion to intervene, arguing that sections 10 \u2014 1 and 10 \u2014 10 of the Public Aid Code were unconstitutional in that they violated the Illinois Constitution\u2019s mandate that public funds be used only for public purposes. Ill. Const. 1970, art. VIII, \u00a7 1. The circuit court ultimately denied the Department\u2019s motion to intervene, finding that the application of these sections to allow intervention by the Department in this case would constitute an unconstitutional use of public funds for a purely private purpose. The Department appealed to the appellate court and the appellate court transferred the appeal to this court pursuant to Supreme Court Rule 302(a)(1) (134 Ill. 2d R. 302(a)(1)).\nFACTS\nLarry and Lynn Lappe were married on October 18, 1969. The couple had two children, Chad and Nicholas. In 1989, both Lynn and Larry filed petitions for dissolutian of the marriage in the circuit court of Madison County. On August 21, 1989, the circuit court entered an order dissolving the marriage. The record reveals that Larry filed for bankruptcy pursuant to chapter 7 of the United States Bankruptcy Code on February 12, 1990. According to Larry\u2019s bankruptcy schedules, he was then employed as the United States Postmaster of Sorento, Illinois, and had gross earnings of $33,600 in 1989.\nOn July 13, 1990, the circuit court entered a judgment of dissolution of marriage which incorporated a marital settlement agreement, a joint parenting order, and a qualified domestic relations order regarding the division of Larry\u2019s interest in the Civil Service Retirement System Pension Plan. The marital settlement agreement stated that Larry would pay $523.22 per month in child support, which amount would be adjusted if necessary. The joint parenting order stated that the parties would have joint custody of the two children, with Lynn having primary residential custody.\nOn February 8, 1991, the circuit court entered an order, pursuant to an agreement of the parties, increasing Larry\u2019s child support payments to $546.93 per month. Larry\u2019s child support payments were again increased by agreement on February 5, 1992, to $567.89 per month, based on a salary increase. On July 30, 1992, a stipulated order was entered modifying Larry\u2019s child support obligation to $504.83 per month, because of the emancipation of the couple\u2019s older child, Chad.\nOn March 16, 1993, the circuit court entered an order modifying the judgment of dissolution of marriage, pursuant to the parties\u2019 stipulation. This stipulated order provided that the principal place of residence for the couple\u2019s minor child, Nicholas, was changed from Lynn to Larry, commencing on March 1, 1993. The order provided that Larry\u2019s obligation to pay child support to Lynn would cease, and that Lynn would not be obligated to pay child support to Larry.\nOn July 26, 1995, the Illinois Department of Public Aid, by the Madison County State\u2019s Attorney, filed a motion to intervene on behalf of Larry in the Lappe dissolution action. As grounds for intervention, the Department stated that the Department \"is authorized to institute legal action on behalf of [Larry] for judicial enforcement of [Lynn\u2019s] support liability, pursuant to 305 ILCS 5/10 \u2014 10 and 5/10 \u2014 3.1.\u201d On that same date, the Department filed a petition to establish an obligation on the part of Lynn to pay child support for Nicholas. On August 1, 1995, the circuit court granted the Department\u2019s motion to intervene.\nOn August 9, 1995, Lynn filed an objection to the Department\u2019s motion to intervene. Lynn argued that the Department\u2019s motion should be denied because she \"believed\u201d that Larry was not a recipient of public aid and that he had a \"large and sufficient income (approximately $41,000.00 per year).\u201d On August 29, 1995, Lynn filed an amended objection to the Department\u2019s motion to intervene. The amended objection argued that sections 10 \u2014 1 and 10 \u2014 10 of the Public Aid Code, from which the Department derived its authority to intervene in this case, were unconstitutional. Lynn contended that these provisions violated the separation of powers doctrine contained in section 1 of article II of the Illinois Constitution of 1970, and the mandate that public funds may be used only for public purposes contained in section 1 of article VIII of the Illinois Constitution of 1970.\nOn April 3, 1996, the circuit court entered an order setting aside its previous order granting the Department leave to intervene and denied the Department leave to intervene. The circuit court determined that the relevant statutory provisions authorized the Department to intervene on behalf of Larry. The court found, however, that the provisions violated the constitutional mandate that public funds be used only for public purposes. The court determined that there was no proper public purpose in the Department\u2019s providing child support enforcement services to Larry because Larry made $40,000 per year and was therefore able to pursue child support from Lynn without the Department\u2019s assistance. The circuit court rejected the contention that these provisions violated the separation of powers doctrine. The circuit court\u2019s order concluded as follows:\n\"It is therefore ordered, that the statutory provisions relied upon and cited herein, while not unconstitutional in the absolute sense, would lead to an unconstitutional result in the instant case, and accordingly the Order of August 1, 1995 granting the State\u2019s Attorney leave to intervene is set aside, and said Motion for Leave to Intervene is denied.\u201d\nThe circuit court subsequently entered an order finding that there was no just reason for delaying the appeal of its April 3, 1996, order.\nThe Department filed a notice of appeal to the appellate court. The Department thereafter filed a motion in the appellate court to transfer the appeal to this court pursuant to Supreme Court Rule 302(a)(1), because the circuit court had held a statutory provision unconstitutional. Lynn objected to the motion to transfer. On August 9, 1996, the appellate court entered an order transferring the appeal to this court.\nANALYSIS\nJurisdiction\nLynn challenges this court\u2019s jurisdiction over this appeal. The Department argues that jurisdiction is proper in this court pursuant to Supreme Court Rule 302(a)(1), because the circuit court held that a state statute was unconstitutional. Supreme Court Rule 302(a)(1) provides for appeals to be taken directly to this court from final judgments of circuit courts \"in cases in which a statute of the United States or of this State has been held invalid.\u201d 134 Ill. 2d R 302(a). Lynn contends that the circuit court\u2019s order in this case did not hold a statute unconstitutional but, rather, held only that the statute was unconstitutional as applied in this case. Lynn relies on this court\u2019s decision in Rehg v. Illinois Department of Revenue, 152 Ill. 2d 504, 509 (1992), in which we noted that a lower court order that \"simply declares that application of [a] statute would violate a particular defendant\u2019s constitutional rights\u201d is not directly appeal-able to this court pursuant to Rule 302(a).\nA narrow reading of the circuit court\u2019s order in this case supports Lynn\u2019s argument. The order states that the statutory provisions \"would lead to an unconstitutional result in the instant case.\u201d We must look, however, to the effect of the circuit court\u2019s order to determine whether the order actually declared the statutory provisions unconstitutional on their face. See Doe v. Gainer, 162 Ill. 2d 15, 18 (1994). If the effect of the circuit court\u2019s order was to declare a statute unconstitutional on its face, this court has jurisdiction under Rule 302(a)(1). See Doe, 162 Ill. 2d at 18 (although circuit court\u2019s order stated that statute was unconstitutional \"as applied\u201d to the plaintiff, effect of order was to declare provision unconstitutional on its face and jurisdiction under Rule 302(a)(1) was proper); First of America Bank, Rockford, N.A. v. Netsch, 166 Ill. 2d 165, 169 (1995) (this court assumed jurisdiction under Rule 302(a)(1) of appeal from circuit court order which held that certain statutory provisions were unconstitutional \"as applied\u201d to the plaintiff); People v. Roos, 118 Ill. 2d 203 (1987) (this court assumed jurisdiction under Rule 302(a)(1) of appeal from circuit court order which held that a statute was unconstitutional \"as applied\u201d to the practice of acupuncture); Miller v. Lockett, 98 Ill. 2d 478, 479-80 (1983) (this court held that jurisdiction was proper under Rule 302(a)(1) even though the circuit court did not directly state that the statute was unconstitutional because it appeared from the order that the circuit court found the statute invalid); Sommer v. Village of Glenview, 79 Ill. 2d 383, 385-86 (1980) (this court held that it had jurisdiction under Rule 302(a)(1) of appeal from circuit court order which stated only that a particular statutory provision could not be applied to home rule units because, in effect, the circuit court order necessarily held that the statutory provision was unconstitutional as applied to home rule units).\nThe Department asserts that the effect of the circuit court\u2019s order was to declare sections 10 \u2014 1 and 10 \u2014 10 of the Public Aid Code, in part, unconstitutional on their face. We agree. The circuit court ruled that sections 10 \u2014 1 and 10 \u2014 10 of the Public Aid Code were unconstitutional as applied to Larry because, in the court\u2019s opinion, Larry earned $40,000 per year and therefore was capable of pursuing child support enforcement services without the Department\u2019s assistance. As we discuss in detail later in this opinion, however, sections 10 \u2014 1 and 10 \u2014 10 clearly grant the Department the discretion to provide child support enforcement services to any individual who applies for them, regardless of that individual\u2019s financial capability to pursue enforcement privately. Thus, Larry is within the class of recipients contemplated by the statutory provisions. The trial court\u2019s ruling that the provisions are unconstitutional as applied to Larry is therefore, in effect, a ruling that the provisions are unconstitutional to the extent they allow application to Larry and others who are \"financially capable.\u201d In effect, the circuit court declared portions of sections 10 \u2014 1 and 10 \u2014 10 unconstitutional on their face. We therefore have jurisdiction pursuant to Rule 302(a)(1).\nConstitutionality\nWe now turn to the substantive issue in this case: whether sections 10 \u2014 1 and 10 \u2014 10 of the Public Aid Code, in allowing the Department the discretion to provide child support enforcement services to an individual who may be financially capable of pursuing enforcement privately, serve a public purpose within the meaning of article VIII, section 1, of the Illinois Constitution. The argument that these provisions violate the separation of powers doctrine has not been raised in this court.\nIt is well established that legislative enactments enjoy a heavy presumption of constitutionality. People ex rel. Sheppard v. Money, 124 Ill. 2d 265, 272 (1988); County of Kane v. Carlson, 116 Ill. 2d 186, 216 (1987). The party challenging the constitutionality of a statute has the burden of clearly establishing its invalidity. People v. Adams, 149 Ill. 2d 331, 338 (1992); Bernier v. Burris, 113 Ill. 2d 219, 227 (1986). Courts have a duty to sustain legislation whenever possible and resolve all doubts in favor of constitutional validity. Adams, 149 Ill. 2d at 338; Sheppard, 124 Ill. 2d at 272.\nThe statutory provisions at issue in this case govern the Department\u2019s provision of child support enforcement services to individuals who are not receiving public aid. These provisions are part of a larger statutory scheme for the enforcement of child support obligations, and a review of that statutory framework is necessary to provide a proper context for these provisions. We begin with the pertinent provisions of the federal Social Security Act. 42 U.S.C. \u00a7 301 et seq. (1994).\nSocial Security Act\nThe federal welfare program known as Aid to Families with Dependent Children (AFDC), contained in Title IV-A of the Social Security Act, established a scheme under which the federal government would reimburse states for a percentage of the funds that states distributed to needy families with children. 42 U.S.C. \u00a7 601 et seq. (1994). States were not required to participate in the AFDC program, but if a state chose to participate in the program, it had to comply with the requirements of the Social Security Act and the regulations promulgated thereunder. 42 U.S.C. \u00a7 602 (1994); King v. Bradley, 829 F. Supp. 989, 991 (N.D. Ill. 1993). Title IV-A set out, in considerable detail, the elements which must be included in a state AFDC plan. 42 U.S.C. \u00a7 602 (1994). If a state AFDC plan met with federal approval, the state was entitled to reimbursement from the federal government of a substantial percentage of the state funds it expended in AFDC payments. 42 U.S.C. \u00a7 603(a) (1994).\nIn 1974, Congress amended the Social Security Act by adding Title IV-D. 42 U.S.C. \u00a7 651 et seq. (Supp. 1975). Title IV-D established a Child Support Enforcement Program, \u201d[f|or the purpose of enforcing the support obligations owed by absent parents to their children.\u201d 42 U.S.C. \u00a7 651 (1994). At the same time, Title IV-A was amended to require states, as a condition of receiving federal AFDC funds, to adopt child support enforcement programs that complied with Title IV-D. 42 U.S.C. \u00a7 602(a)(27) (1994). Accordingly, in order for a state to obtain federal funding for its AFDC program, the state was required to operate a child support enforcement program in compliance with Title IV-D. 42 U.S.C. \u00a7\u00a7 602(a)(27), 603(h) (1994); see also People v. Sheppard, 124 Ill. 2d 265, 270 (1988); King v. Bradley, 829 F. Supp. 989, 991 (N.D. Ill. 1993); Carelli v. Howser, 923 F.2d 1208, 1210 (6th Cir. 1991).\nA state program under Title IV-D must provide a variety of services including establishment of paternity, establishment and enforcement of support obligations, and parent locator services. 42 U.S.C. \u00a7 652(a)(1) (1994); 45 C.F.R. \u00a7\u00a7 303.3, 303.4, 303.5, 303.6 (1994). By operating a program of child support enforcement services in compliance with Title IV-D, a state not only would receive federal AFDC funding, but it would also be reimbursed by the federal government for a large percentage, ranging from 66% to 90%, of the state funds it expends in connection with the Title IV-D program. 42 U.S.C. \u00a7 655 (1994). In addition, Title IV-D provides for states to be paid incentive payments to \"encourage and reward\u201d states which operate efficient enforcement programs. 42 U.S.C. \u00a7 658(b) (1994). The incentive payments will generally equal 6% of the state\u2019s support collections in AFDC cases and 6% of the state\u2019s support collections in non-AFDC cases in a particular year. 42 U.S.C. \u00a7 658(b) (1994).\nTitle IV-D provides detailed requirements with which a state plan must comply in order for the state to be entitled to federal funding. 42 U.S.C. \u00a7 654 (1994). One of the requirements of Title IV-D is that the state must make the same child support enforcement services available to both families receiving AFDC and families who are not receiving AFDC. 42 U.S.C. \u00a7 654(6) (1994). The version of section 654(6) applicable to this case provides, in pertinent part:\n\"A State plan for child and spousal support must\u2014\n* * *\n(6) provide that (A) the child support collection or paternity determination services established under the plan shall be made available to any individual not otherwise eligible for such services upon application filed by such individual with the State, *** (B) an application fee for furnishing such services shall be imposed, which shall be paid by the individual applying for such services, or recovered from the absent parent, or paid by the State out of its own funds, *** the amount of which (i) will not exceed $25 (or such higher or lower amount (which shall be uniform for all States) as the Secretary may determine to be appropriate for any fiscal year ***.\u201d 42 U.S.C. \u00a7 654(6) (1994).\nThe Office of Child Support Enforcement (OCSE), the federal agency charged with administering the AFDC program, has promulgated regulations to carry out the Title IV-D program. 45 C.F.R. \u00a7 301 et seq. (1994). In accordance with Title IV-D, the OCSE regulations provide that states must make child support enforcement services available to non-AFDC recipients. Regulation 302.33 provides, in relevant part:\n\"Services to individuals not receiving AFDC or title IV-E foster care assistance.\n(a) Availability of Services. (1) The State plan must provide that the services established under the plan shall be made available to any individual who:\n(i) Files an application for the services with the IV-D agency.\u201d 45 C.F.R. \u00a7 302.33 (a)(l)(i) (1994).\nWe note, for clarification purposes, that in late 1996, Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. 104\u2014 193, 110 Stat. 2105 (Personal Responsibility Act). The Personal Responsibility Act replaced the federal AFDC program contained in Title IV-A with a program of block grants to states for Temporary Assistance for Needy Families (TANF). Pub. L. 104 \u2014 193, 110 Stat. 2112-13. TANF, like AFDC, provides the states participating in the program with federal funding for the states\u2019 programs of public assistance to families with dependent children. Pub. L. 104 \u2014 193, 110 Stat. 2134. In order to be eligible for a block grant under the TANF program, a state must still operate a child support enforcement program in compliance with Title IV-D. Pub. L. 104\u2014 193,110 Stat. 2114, 2198-2200. The Personal Responsibility Act also amended some portions of Title IV-D. However, Title IV-D still requires that a state program must provide child support enforcement services to \"any *** child, if an individual applies for such services with respect to the child.\u201d Pub. L. 104 \u2014 193, 110 Stat. 2199.\nIllinois Public Aid Code\nIllinois chose to participate in the federal AFDC program and thereby receive federal funding for its public aid program. 305 ILCS 5/12 \u2014 4.5 (West 1994); 89 111. Adm. Code \u00a7 160.10(a) (1994); see also King v. Bradley, 829 F. Supp. 989, 991 (N.D. Ill. 1993). As a result, Illinois is required to operate a child support enforcement program that complies with Title IV-D. 42 U.S.C. \u00a7 602(a)(27) (1994). Illinois\u2019 Title IV-D program is contained in article X of the Public Aid Code and part 160 of the Department\u2019s regulations. 305 ILCS 5/10 \u2014 1 et seq. (West 1994); 89 Ill. Adm. Code \u00a7 160.1 et seq. (1994).\nArticle X of the Public Aid Code states that its purpose is to provide for locating an absent parent, for determining his or her financial circumstances, and for enforcing his or her legal obligation of support. 305 ILCS 5/10 \u2014 1 (West 1994). The services available under article X include (1) identifying and locating an absent parent, (2) establishing parentage, (3) establishing support obligations, (4) enforcing and collecting support, (5) receiving and distributing support payments, and (6) maintaining accurate records of location and support activities. 89 Ill. Adm. Code \u00a7 160.10(c) (1994). The Department may provide these services though the use of either the administrative process or the court system. 305 ILCS 5/10 \u2014 10, 10 \u2014 11 (West 1994); 89 Ill. Adm. Code \u00a7 160.10(d) (1994). To establish a support obligation where a court has previously acquired jurisdiction in a case, the Department refers the case to the Attorney General or State\u2019s Attorney for judicial action, which includes the preparation of petitions to intervene, petitions to establish support obligations, and petitions to modify. 305 ILCS 5/10 \u2014 10, 10 \u2014 3.1 (West 1994); 89 Ill. Adm. Code \u00a7\u00a7 160.60(e)(1), (e)(2) (1994).\nThe provisions at issue in this case are contained in article X and pertain to the provision of child support enforcement services to non-AFDC recipients. In accordance with the federal mandate of Title IV-D, article X provides that the child support enforcement services provided thereunder shall be available to both AFDC families and non-AFDC families. Section 10 \u2014 1 provides, in pertinent part:\n\"At the discretion of the Illinois Department of Public Aid, the child and spouse support services established under this Article may also be furnished in behalf of spouses and dependent children who are not applicants for or recipients of financial aid under this Code. The Department may limit eligibility of these persons to designated income classes. If non-applicants and non-recipients are included, the Department may establish a schedule of reasonable fees, to be paid for the services provided and may deduct a collection fee, not to exceed 10% of the amount collected, from such collection. The Illinois Department of Public Aid shall cause to be published and distributed publications reasonably calculated to inform the public that individuals who are not recipients of or applicants for public aid under this Code are eligible for the child and spouse support services under this Article X.\u201d 305 ILCS 5/10 \u2014 1 (West 1994).\nSection 10 \u2014 10 specifically refers to the use of the court system to provide child support enforcement services. In relevant part, section 10 \u2014 10 provides:\n\"Actions may also be brought under this Section in behalf of any person who is in need of support from responsible relatives, *** who is not an applicant for or recipient of financial aid under this Code.\u201d 305 ILCS 5/10 \u2014 10 (West 1994).\nIn the present case, the circuit court determined that sections 10 \u2014 1 and 10 \u2014 10 authorized the Department to intervene and file a petition to establish child support on behalf of Larry. The court ruled, however, that, in so doing, the statutory provisions violated the Illinois Constitution\u2019s mandate that public funds be used only for public purposes. The circuit court found that there was no public purpose in the \"use of State funds to provide a lawyer for a parent making $40,000 a year.\u201d\nWe first note that the circuit court was correct in concluding that the pertinent provisions of sections 10 \u2014 1 and 10 \u2014 10 authorize the Department to intervene on behalf of Larry in this case. These provisions grant the Department the discretion to provide child support enforcement services to any individual who applies for such services, without regard to his or her financial status. Section 10 \u2014 1 states that the Department \"may\u201d limit eligibility to designated income groups. 305 ILCS 5/10 \u2014 1 (West 1994). Implicit in that statement is that the Department may choose not to limit eligibility based on income. The Department regulations state that, in accordance with Title IV-D, child support enforcement services are available to \"persons not receiving [public aid], upon application to the Department for such services.\u201d 89 Ill. Adm. Code \u00a7 160.10(a)(9) (1996). The Department regulations do not contain any provision limiting eligibility based on income, and the parties do not direct our attention to any other source for such limitation. The legislative history of section 10 \u2014 10 further supports the conclusion that the Department is granted the discretion to provide child support enforcement services to any individual, regardless of financial need. Prior to 1975, section 10 \u2014 10 stated that actions for child support enforcement could be brought by the Department \"in behalf of any person in necessitous circumstances who is in need of support from responsible relatives.\u201d (Emphasis added.) Ill. Rev. Stat. 1973, ch. 23, \u00a7 10 \u2014 10. When section 10 \u2014 10 was amended in 1975, the phrase \"in necessitous circumstances\u201d was deleted from that sentence, so that the section would read, as it presently does, that actions could be brought in behalf of \"any person who is in need of support from responsible relatives.\u201d The legislature deliberately omitted financial need of the applicant as a restriction on the Department\u2019s authority. Thus, the pertinent provisions of sections 10 \u2014 1 and 10 \u2014 10 clearly authorize the Department to intervene and petition to establish child support on behalf of Larry.\nWe must therefore determine whether the provision of child support enforcement services to a non-aid recipient who may be financially capable of pursuing such enforcement privately is a public purpose within the meaning of article VIII, section 1, of our state constitution. We agree with the Department that Lynn failed to meet her burden of establishing that no public purpose is served by the Department\u2019s provision of child support enforcement services in this case.\nPublic Purpose\nArticle VIII, section 1, of the Illinois Constitution of 1970 provides that \"[pjublic funds, property or credit shall be used only for public purposes.\u201d Ill. Const. 1970, art. VIII, \u00a7 1. This court has long recognized that what is for the public good and what are public purposes are questions which the legislature must in the first instance decide. People ex rel. City of Salem v. McMackin, 53 Ill. 2d 347, 355 (1972); Cremer v. Peoria Housing Authority, 399 Ill. 579, 588 (1948). In making this determination, the legislature is vested with a broad discretion, and the judgment of the legislature is to be accepted in the absence of a clear showing that the purported public purpose is but an evasion and that the purpose is, in fact, private. Salem, 53 Ill. 2d at 355; People ex rel. McDavid v. Barrett, 370 Ill. 478, 482 (1939); Hagler v. Small, 307 Ill. 460, 474 (1923). In the words of Justice Holmes, \"a declaration by a legislature concerning public conditions that by necessity and duty it must know, is entitled at least to great respect.\u201d Block v. Hirsh, 256 U.S. 135,154, 65 L. Ed. 865, 870, 41 S. Ct. 458, 459 (1921).\nThis court has previously set forth guidelines for this inquiry:\n\"In deciding whether such purpose is public or private, courts must be largely influenced by the course and usage of the government, the object for which taxes and appropriations have been customarily and by long course of legislation levied and made, and what objects have been considered necessary to the support and for the proper use of the government. Whatever lawfully pertains to this purpose and is sanctioned by time and the acquiescence of the people may well be said to be a public purpose and proper for the maintenance of good government.\u201d Hagler, 307 Ill. at 474.\nWhat is a \"public purpose\u201d is not a static concept, but is flexible and capable of expansion to meet the changing conditions of a complex society. People ex rel. Adamowski v. Chicago R.R. Terminal Authority, 14 Ill. 2d 230, 236 (1958); People v. Chicago Transit Authority, 392 Ill. 77, 86 (1945). Moreover, \" '[t]he power of the State to expend public moneys for public purposes is not to be limited, alone, to the narrow lines of necessity, but the principles of wise statesmanship demand that those things which subserve the general wellbeing of society and the happiness and prosperity of the people shall meet the consideration of the legislative body of the State, though they ofttimes call for the expenditure of public money.\u2019 \u201d Salem, 53 Ill. 2d at 357-58, quoting Hagler, 307 Ill. at 475. The consensus of modern legislative and judicial thinking is to broaden the scope of activities which may be classified as involving a public purpose. Salem, 53 Ill. 2d at 356; see also Marshall Field & Co. v. Village of South Barrington, 92 Ill. App. 3d 360, 366 (1981).\nThe Department argues that the pertinent portions of sections 10 \u2014 1 and 10 \u2014 10 serve a public purpose by advancing the welfare of children. We agree. The provision of child support enforcement services on behalf of all dependent children serves a public purpose by promoting the right of children to be supported by their parents, fostering parental responsibility and involvement, and preventing families from becoming dependent on welfare.\nThis court has recognized that Illinois has a strong interest in preserving and promoting the welfare of children. People ex rel. Sheppard v. Money, 124 Ill. 2d 265, 277 (1988). In this regard, this court has noted that \"[a] parent\u2019s duty to support his or her minor child is among the oldest principles of law.\u201d Sheppard, 124 Ill. 2d at 269-70, citing 1 W. Blackstone, Commentaries *446-47. \"Indeed, it is difficult to imagine a more compelling State interest than the support of children.\u201d Sheppard, 124 Ill. 2d at 277. As described above, the Illinois child support enforcement program provides assistance to custodial parents in locating absent parents, establishing parentage, and establishing, enforcing and collecting support obligations. The provision of these services clearly serves the public purpose of advancing the welfare of children by enforcing a child\u2019s right to be supported by his parents, fostering parental responsibility and parental involvement with the child, and preventing the child and custodial parent from having to turn to welfare.\nThis public purpose is served by the extension of these services to all children, regardless of the financial circumstances of their custodial parents. All children have the right to be supported by their parents, and are benefitted, both financially and otherwise, when an absent parent provides support. The legislature could rightly determine that a public purpose is served by providing an effective program of child support enforcement that is available on behalf of all children with an absent parent. The focus of this legislation is on effective enforcement. The provisions simply create a mechanism whereby custodial parents of dependent children can, with minimal time and expense, obtain assistance with the paperwork involved in child support enforcement, with locating the person obligated to pay support and with taking the necessary steps, including judicial action, to ensure that the proper amount of money is collected. As one article describes it, \"with the help of IDPA potentially available in virtually all cases, custodial parents can tap various resources that allow for effective enforcement.\u201d D. Bergbreiter & A. McKay, Child Support Enforcement and the Illinois Department of Public Aid, 81 Ill. B.J. 638, 643 (1993).\nOur precedent supports the conclusion that a public purpose is served by the legislation challenged in this case. In Board of Education, School District No. 142 v. Bakalis, 54 Ill. 2d 448 (1973), this court found that a public purpose was served by a provision of the School Code which required school boards to provide free transportation to school to nonpublic school students. The plaintiff challenged the statute, arguing that it violated article VIII, section 1, of the Illinois Constitution of 1970 because it constituted the use of public funds for a nonpublic purpose. This court rejected that argument, finding that the transportation of school children, public or nonpublic, is a public purpose. Bakalis, 54 Ill. 2d at 466. The enforcement of a child\u2019s legal right to support from its parent must be considered at least as beneficial to the public good as the transportation of children to school.\nIn addition, it is important to note that these provisions were included in our Public Aid Code in order to comply with Title IV-D of the Social Security Act. It is appropriate to look at the purposes sought to be achieved by Congress in requiring that states include these provisions. One purpose of Title IV-D was to decrease welfare costs by collecting child support owed by noncustodial parents whose dependent children were receiving public aid. See S. Rep. No. 93 \u2014 1356, 93rd Cong., 2d Sess., reprinted in 1974 U.S.C.C.A.N. 8133, 8145-47. Title IV-D, however, expressly requires that child support enforcement services be provided to non-AFDC families who make application for such services. The legislative history of Title IV-D reveals dual purposes behind the extension of child support enforcement services to non-AFDC families. One purpose was to reduce welfare costs by preventing families from becoming dependent on public aid as a result of unpaid child support. S. Rep. No. 93 \u2014 1356, 93rd Cong., 2d Sess., reprinted in 1974 U.S.C.C.A.N. 8133, 8145-47. The legislative history, however, reveals that Title IV-D was also aimed at the broader goal of assuring that all children will obtain assistance in securing child support regardless of their circumstances.\nIn recommending passage of Title IV-D in 1974, the Senate finance committee noted that \"the enforcement of child support obligations is not an area of jurisprudence about which this country can be proud,\u201d and that Title IV-D was designed to help \"all children\u201d receive the support from absent parents that was their right. S. Rep. No. 93 \u2014 1356, 93rd Cong., 2d Sess., reprinted in 1974 U.S.C.C.A.N. 8133, 8145-46. Further, in 1984, Congress amended Title IV-D to strengthen the effectiveness of the program and to clarify that its purpose was to provide assistance in securing child support to all children \"regardless of their circumstances.\u201d S. Rep. No. 98 \u2014 387, 98th Cong., 2d Sess., reprinted in 1984 U.S.C.C.A.N. 2397, 2397. To that end, the 1984 amendments added language to the purpose clause of Title IV-D so that it would specifically state that its purpose was to assure assistance in obtaining support \"to all children *** for whom such assistance is requested.\u201d 42 U.S.C. \u00a7 651 (1994). This purpose was also emphasized in the recent amendments to Title IV-D made by the Personal Responsibility Act of 1996. In explaining the amendments to Title IV-D, the House report stated that:\n\"because millions of families are at risk of needing public welfare unless noncustodial parents provide child support, and because additional millions of families are not receiving the financial support that is their legal right from noncustodial parents, States must provide child support services to nonwelfare families that request such services.\u201d (Emphasis added.) H.R. Rep. No. 104 \u2014 651, 104th Cong., 2d Sess., reprinted in 1996 U.S.C.C.A.N. 2380, 2456.\nIn addition, we note that other states have enacted statutes which provide, in accordance with Title IV-D, that the same child support enforcement services must be provided to both AFDC families and non-AFDC families. See Cabinet for Human Resources v. Houck, 908 S.W.2d 673 (Ky. 1995); Thaysen v. Thaysen, 583 So. 2d 663 (Fla. 1991); Worth v. Superior Court, 207 Cal. App. 3d 1150, 255 Cal. Rptr. 304 (1989); Jeske v. Jeske, 144 Wis. 2d 364, 424 N.W.2d 196 (1988); Krogstad v. Krogstad, 388 N.W.2d 376 (Minn. 1986); Carter v. Morrow, 562 F. Supp. 311 (W.D.N.C. 1983). Several courts in other states have addressed the issue of whether it is a violation of Title IV-D for a state to limit eligibility for child support enforcement services to non-AFDC recipients who are financially incapable of pursuing enforcement privately. Those courts have held that Title IV-D requires that states provide child support enforcement services to all custodial parents who apply for such services, regardless of the parent\u2019s financial circumstances. See State v. Wagner, 136 Wis. 2d 1, 400 N.W.2d 519 (1986); Thurman v. Commonwealth of Kentucky, Cabinet for Human Resources, 828 S.W.2d 368 (Ky. 1992); South Carolina Department of Social Services v. Deglman, 290 S.C. 542, 351 S.E.2d 864 (1986).\nFurther, the legislation challenged here has been in existence in this state for over 20 years. In determining whether a statute serves a public purpose, a court \"may take into consideration a long course of legislation and usage of the government.\u201d Barrett, 370 Ill. at 485; Hagler, 307 Ill. at 474. The pertinent portions of sections 10 \u2014 1 and 10 \u2014 10 have been in effect, in substantially their present form, since 1975. Thus, for over 20 years, the Department has possessed the authority to provide child support enforcement services to non-AFDC families, regardless of their financial circumstances. A Department report indicates that since the Department began enforcing child support orders in 1976, the Department has collected more than $1.4 billion for the children of Illinois. Illinois Department of Public Aid Biennial Report, Fiscal Years 1993-94, at 10. Department reports also indicate that in fiscal year 1995, the Department\u2019s child support enforcement program had an active client caseload of 495,833 clients, of which 243,551 were non-AFDC clients, and the Department collected a total of $241 million in support, with $164.6 million coming from non-AFDC case collections. Illinois Department of Public Aid Human Services Plan, Fiscal Years 1994, 1995, 1996, at 109. For fiscal year 1996, it was estimated that total support collections would equal $270.5 million, with $185.5 million coming from non-AFDC cases. Illinois Department of Public Aid Human Services Plan, Fiscal Years 1994, 1995, 1996, at 109.\nIn view of the foregoing, it is clear that our legislature, the legislatures of other states, and Congress have all determined that the provision of effective child support enforcement services on behalf of all children, regardless of the financial circumstances of their parents, is an important governmental goal. It is uniquely within the province of these legislative bodies to make these determinations of governmental policy. Hagler, 307 Ill. at 474. Our only permissible inquiry is whether the legislature\u2019s determination is constitutionally permissible. We find no constitutional basis for overturning the judgment of our legislature on this issue.\nLynn contends, however, that the legislation challenged here does not serve any public purpose, but serves only to provide a private benefit to Larry in the form of free legal services. This is not an accurate characterization. The Department\u2019s child support enforcement services are being provided for the benefit of the Lappes\u2019 dependent child, not the custodial parent. Child support payments are intended to go directly for the benefit of the child. In re Marriage of Pihaly, 258 Ill. App. 3d 851, 856 (1994). Moreover, article X specifically negates the contention that the purpose of these provisions is to provide free legal representation to custodial parents. Section 10 \u2014 3.1 provides that \"[a]n attorney who provides representation pursuant to this Section shall represent the Illinois Department exclusively *** [and] an attorney-client relationship does not exist *** between that attorney and *** an applicant for or recipient of child and spouse support services ***.\u201d 305 ILCS 5/10 \u2014 3.1 (West 1994). The fact that Larry may be incidentally benefitted by the provision of these services does not destroy the public nature of the legislation. This court has recognized that \"[t]he execution of a public purpose which involves the expenditure of money is usually attended with private benefits.\u201d Hagler, 307 Ill. at 473. If the principal purpose of the enactment is public in nature, it is irrelevant that there will be an incidental benefit to private interests. Salem, 53 Ill. 2d at 355; Adamowski, 14 Ill. 2d at 236.\nLynn also takes the position that non-AFDC individuals should be charged a fee for the enforcement services provided under this legislation and that, absent such a fee, the provisions are unconstitutional. We note first that the Department regulations require that non-AFDC applicants for services pay an application processing fee not to exceed $25. 89 Ill. Adm. Code \u00a7 160.15 (1994). Although the record is silent on this issue, we assume that this fee was charged to Larry, as he was required, under the regulations, to file an application with the Department to obtain these services. 89 Ill. Adm. Code \u00a7 160.10(a)(9) (1996). Apparently then, Lynn\u2019s contention is that fees in addition to the application fee are required to be charged to Larry if the statutory provisions are to be constitutional.\nSection 10 \u2014 10.1 of our Code directs that, where services are provided on behalf of a non-aid recipient, under certain circumstances a collection fee shall be collected from the person who owes the support obligation. 305 ILCS 5/10 \u2014 10.1 (West 1994). Further, section 10 \u2014 1 of the Code grants the Department discretion to establish a reasonable schedule of fees and to deduct a collection fee, not to exceed 10% of the amount collected, from the support collected. 305 ILCS 5/10 \u2014 1 (West 1994). Other than the application processing fee, the Department regulations do not set forth a plan for additional fees or other cost recovery from the applicant for services. The parties do not direct our attention to any other source for such additional fees to be recovered from the applicant. Thus, our statutory scheme does not provide for the imposition of a fee, beyond the application processing fee, to be imposed upon non-AFDC applicants for support enforcement services. Nevertheless, we fail to see how the Department\u2019s decision whether to impose a fee for the services provided impacts on whether the legislation serves a public purpose.\nLynn also urges this court to affirm the circuit court because the parties had, two years earlier, stipulated that Lynn would not pay child support, the court entered an order pursuant to that stipulation, and there is no claim that there has been any change in circumstances warranting that Lynn now be ordered to pay child support. All of these circumstances, however, pertain to the merits of the petition to establish a child support obligation on the part of Lynn. Due to the circuit court\u2019s denial of the motion to intervene, the merits of that petition were never reached. The only issue before this court is whether the circuit court erred in denying the Department leave to intervene, and none of these circumstances are relevant to that issue.\nIn conclusion, we find no reason to overturn the legislature\u2019s determination that a public purpose is served by the provision of child support enforcement services on behalf of all children, regardless of the financial circumstances of their custodial parent. Child support enforcement in this country has, in the past, been a national disgrace, due both to the lack of effective enforcement programs and the failure to implement those programs by the officials charged with enforcement. See S. Rep. No. 93 \u2014 1356, 93rd Cong., 2d Sess., reprinted in 1974 U.S.C.C.A.N. 8133, 8145-49; People v. Sheppard, 124 Ill. 2d 265, 270 (1988). It was the legislature\u2019s province to assess this crisis and determine whether, and how, to respond. We are not persuaded that the legislature exceeded the bounds of its discretion in enacting the legislation here challenged.\nCONCLUSION\nFor the foregoing reasons, we reverse the circuit court\u2019s order which held sections 10 \u2014 1 and 10 \u2014 10 of the Public Aid Code unconstitutional and denied the Department\u2019s motion to intervene. This cause is remanded to the circuit court for further proceedings not inconsistent with this opinion.\nReversed and remanded.\nWe note in passing that the record contains no evidence regarding either Larry\u2019s or Lynn\u2019s current financial status. Although the circuit court concluded that Larry earned $40,000 per year, the only basis in the record for that conclusion is an allegation in Lynn\u2019s unverified objection to the petition to intervene where she states that she \"verily believes that Larry K. Lappe is not a recipient of public aid, and further verily believes that he has a large and sufficient income (approximately $41,000 per year).\u201d\nFor ease of reference, we will refer to the federal funding Illinois receives toward its public assistance program as \"AFDC\u201d funding even though, pursuant to the 1996 Personal Responsibility Act, such federal funding will in the future be provided through the TANF block grant program.", "type": "majority", "author": "JUSTICE BILANDIC" }, { "text": "JUSTICE FREEMAN,\ndissenting:\nJurisdiction is the cornerstone of the entire judicial process; without it, courts have no power to decide the merits of a controversy. The absence of jurisdiction is so serious that it is one of the few defects which cannot be waived even by consent of all the parties. As a result, courts themselves, at every level, have an obligation to raise the lack of jurisdiction sua sponte and to dismiss a pending action whenever it becomes apparent that jurisdiction does not exist. Accordingly, jurisdiction is not a fiction which can be created out of whole cloth. It cannot be manufactured, nor can its limitations be circumvented merely to suit the exigencies of the moment. Yet that is precisely what the majority does today. Because I cannot concur in my colleagues\u2019 invocation of jurisdiction in this case, I must respectfully dissent.\nThis court has long recognized the distinction between a statute which is unconstitutional on its face and a statute which is unconstitutional as applied. In the former situation, the provision itself is invalid from its inception and has no force and effect upon any person or entity. In contrast, when a statute is deemed unconstitutional as applied, the statute itself is not invalid, but is simply not applied to a particular case because to do so would violate some superior constitutional right. This distinction is critical, particularly with respect to this court\u2019s authority to entertain an appeal under Supreme Court Rule 302(a) (134 Ill. 2d R. 302(a)). That rule specifically limits our direct appellate jurisdiction to only those cases in which \"a statute of the United States or of this State has been held invalid.\u201d (Emphasis added.) 134 Ill. 2d R. 302(a). It is precisely because Rule 302(a) speaks in terms of invalidity, as opposed to application, that this court will not ordinarily entertain direct appeals in cases involving an \"as applied\u201d determination. Thus, in Rehg v. Illinois Department of Revenue, 152 Ill. 2d 504, 508-09 (1992), we held that an appeal from an order which does not declare a statute unconstitutional on its face, but simply declares that the application of the statute would violate a particular defendant\u2019s constitutional right, \"is properly brought in the appellate court pursuant to Rule 301.\u201d Rehg, 152 Ill. 2d at 509. In support of that conclusion, we stressed that \"[s]uch an [as applied] order does not declare a statute unconstitutional,\u201d nor does it \"invalidate\u201d the statute for purposes of Rule 302(a). Rehg, 152 Ill. 2d at 509. We ultimately reached the merits of the controversy in Rehg under Rule 302(a), but only because the circuit court had also declared the Tax Act \"unconstitutional on its face.\u201d Rehg, 152 111. 2d at 509. The circuit court did not make such a ruling in this case.\nIn the present case, the circuit court declared sections 10 \u2014 1 and 10 \u2014 10 of the Public Aid Code unconstitutional as applied. Specifically, the circuit court held:\n\"It is therefore ordered, that the statutory provisions relied upon and cited herein, while not unconstitutional in the absolute sense, would lead to an unconstitutional result in the instant case, and accordingly the Order of August 1, 1995 granting the State\u2019s Attorney leave to intervene is set aside, and said Motion for Leave to Intervene is denied.\u201d\nConsequently, because the circuit court did not find sections 10 \u2014 1 and 10 \u2014 10 facially unconstitutional, but only found that the provisions would, in some way, lead to an \"unconstitutional result\u201d as applied, this court lacks direct appellate jurisdiction under Rule 302(a), as interpreted in Rehg.\nNotwithstanding the above, the majority declares that it \"must look, however, to the effect of the circuit court\u2019s order to determine whether the order actually declared the statutory provisions unconstitutional on their face\u201d for \"[i]f the effect of the circuit court\u2019s order was to declare a statute unconstitutional on its face, this court has jurisdiction under Rule 302(a)(1).\u201d 176 Ill. 2d at 420. Applying this rationale, the majority concludes that sections 10 \u2014 1 and 10 \u2014 10 were, \"in effect,\u201d unconstitutional on their face despite the fact that the circuit court had clearly ruled that they were unconstitutional as applied. 176 Ill. 2d at 422. My colleagues reach this conclusion because, in their view, the circuit court\u2019s order could be applied to any person \"financially capable\u201d of pursuing child support without the assistance of the Department. 176 Ill. 2d at 422. I find this conclusion untenable.\nI recognize, of course, that a determination that a statute is \"unconstitutional as applied\u201d may, under certain rare circumstances, be deemed a \"<\u00bfe facto\u201d declaration of the statute\u2019s invalidity for purposes of Rule 302(a). That situation, however, occurs only when the \"as applied\u201d ruling \u2014 although nominally pertaining to a particular person or set of persons \u2014 has the effect of rendering the statute unconstitutional as to all persons under all circumstances. For example, in Doe v. Gainer, 162 Ill. 2d 15 (1994), we entertained a direct appeal under Rule 302(a) from an order declaring certain sections of the Unified Code of Corrections unconstitutional as applied to a particular inmate. We did so because that particular inmate was representative of all inmates who could be affected by the statute in question. Thus, the \"as applied\u201d ruling was, for all intents and purposes, the functional equivalent of a ruling that the statute was facially unconstitutional. In contrast to Doe, the circuit court\u2019s ruling in this case is only applicable to those individuals \"financially capable\u201d of pursuing child support without assistance from the Department. It is not applicable, however, to individuals who are \"financially incapable\u201d of pursuing such support. In fact, those persons may still receive Department assistance under sections 10 \u2014 1 and 10 \u2014 10, which remained valid as to them. Hence, because the provisions at issue remained valid as to some people, rather than \"invalid\u201d as to all people, we do not have direct appellate jurisdiction under Rule 302(a).\nSignificantly, the majority today fails to explain how an \"as applied\u201d ruling which is applicable to less than 100% of the persons contemplated by the statute constitutes the functional equivalent of facial declaration of invalidity. The majority also fails to explain what percentage of those persons must be so characterized in order for the circuit court\u2019s ruling to be viewed as \"in effect\u201d a declaration of unconstitutionality on its face. Nor does the majority explain how this court (or the appellate court, for that matter) will ever be able to determine when that number is great enough to warrant this court\u2019s direct appellate review. Indeed, I simply cannot fathom how such a determination can be undertaken \u2014 short of requiring parties in future cases to supply the reviewing court with statistical data which can establish the number of citizens potentially impacted by the \"as applied\u201d determination.\nIn view of these uncertainties, I am troubled by what I perceive to be the majority\u2019s nonchalant invocation of jurisdiction in this case. As I noted at the outset of this dissent, jurisdiction is not a matter of judicial convenience, but the very basis of a court\u2019s authority to decide the merits of a case. The majority offers little analysis in support of its decision to convert the circuit court\u2019s \"as applied\u201d order in this case into a de facto declaration of invalidity for purposes of Rule 302(a). It offers even less guidance for determining when circumstances exist which justify making such a conversion. In fact, in failing to recognize this shortcoming, my colleagues have unnecessarily blurred the critical distinction between an \"as applied\u201d determination and a facial determination.\nFinally, I view today\u2019s interpretation of Rule 302(a) as not only unfortunate, but unnecessary as well. We are not confronted here with a situation where the controversy might remain unresolved absent action by this court. Jurisdiction to hear this appeal remains with the appellate court pursuant to Supreme Court Rule 301 (155 Ill. 2d R. 301). Furthermore, once the appellate court issues its decision, this court may grant further review under Supreme Court Rule 315 (155 Ill. 2d R. 315). The appellate court could even certify the matter for our review pursuant to Supreme Court Rule 316 (155 Ill. 2d R. 316). In view of these potentialities, I consider the majority\u2019s decision, with all its attendant consequences, to be both unwarranted and improvident.\nFor all of the foregoing reasons, I respectfully dissent.\nJUSTICE McMORROW joins in this dissent.", "type": "dissent", "author": "JUSTICE FREEMAN," } ], "attorneys": [ "James E. Ryan, Attorney General, of Springfield (Barbara A. Preiner, Solicitor General, and Janon E. Fabiano, Assistant Attorney General, of Chicago, of counsel), for appellant.", "Robert F. Kaucher, of Highland, for appellee." ], "corrections": "", "head_matter": "(No. 81605.\nIn re MARRIAGE OF LARRY LAPPE and LYNN LAPPE, Appellee (The Illinois Department of Public Aid, Appellant).\nOpinion filed May 1, 1997.\nFREEMAN, J., joined by McMORROW, J., dissenting.\nJames E. Ryan, Attorney General, of Springfield (Barbara A. Preiner, Solicitor General, and Janon E. Fabiano, Assistant Attorney General, of Chicago, of counsel), for appellant.\nRobert F. Kaucher, of Highland, for appellee." }, "file_name": "0414-01", "first_page_order": 426, "last_page_order": 455 }