Carmichael v. Union Pacific R.R. Co. , 2019 IL 123853 ( 2020 )

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Supreme Court Date: 2020.11.02
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Carmichael v. Union Pacific R.R. Co., 2019 IL 123853Caption in Supreme MARY TERRY CARMICHAEL, Appellant, v. UNION PACIFIC
Court: RAILROAD COMPANY et al. (Professional Transportation, Inc.,
Appellee; Jesse White, Secretary of State, Intervenor-Appellant).
Docket No. 123853
Filed September 19, 2019
Rehearing denied November 25, 2019
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.
Sophia H. Hall, Judge, presiding.
Judgment Judgments vacated.
Cause remanded.
Counsel on John S. Bishof Jr., of Chicago, for appellant.
Appeal
Kwame Raoul, Attorney General, of Springfield (Evan Siegel and
Bridget Dibattista, Assistant Attorneys General, of Chicago, of
counsel), for intervenor-appellant.
Hugh C. Griffin, of Hall Prangle & Schoonveld, LLC, of Chicago, and
George H. Brant, of Judge, James, Hoban & Fisher, LLC, of Park
Ridge, for appellee.
Justices JUSTICE BURKE delivered the judgment of the court, with opinion.
Chief Justice Karmeier and Justices Thomas, Kilbride, Garman, Theis,
and Neville concurred in the judgment and opinion.
OPINION
¶1 The plaintiff in this case was injured in a motor vehicle accident caused by a third party
while riding in an employee transport van owned by defendant Professional Transportation,
Inc. (PTI). She filed a declaratory judgment action in the circuit court of Cook County seeking
a declaration that defendant was legally responsible for her damages due to a statutory
violation. Specifically, plaintiff alleged that defendant’s vehicle insurance policy did not
contain the minimum coverage required by section 8-101(c) of the Illinois Vehicle Code (625
ILCS 5/8-101(c) (West 2010)). In response, PTI filed affirmative defenses alleging that section
8-101(c) was unconstitutional. At the same time, PTI filed a counterclaim based on grounds
identical to those alleged in its affirmative defenses. The trial court dismissed the counterclaim
with prejudice. The appellate court affirmed the dismissal of the counterclaim, but on different
grounds. 2018 IL App (1st) 170075. We now hold that the counterclaim was not a proper
counterclaim under Illinois law. Accordingly, we strike the counterclaim, vacate the lower
courts’ judgments, and remand the cause to the trial court for further proceedings consistent
with this opinion.
¶2 BACKGROUND
¶3 In 2010, plaintiff, Mary Terry Carmichael, was an employee of Union Pacific Railroad
Company (Union Pacific). Union Pacific contracted with PTI to transport its employees to and
between job sites. On November 13, 2010, plaintiff was riding in one of PTI’s vans in the
course of her employment when the van collided with another vehicle, causing plaintiff severe
injuries. The driver of the other vehicle, Dwayne Bell, carried an automobile insurance policy
with liability coverage of $20,000 per person and $40,000 per accident, the minimum coverage
required by Illinois law.
¶4 On September 15, 2011, plaintiff filed a complaint in the law division of the circuit court
of Cook County against Union Pacific, PTI, and Bell. Plaintiff sought money damages for her
injuries based on negligence and violations of the Federal Employers’ Liability Act (45 U.S.C.
§§ 51-60 (2006)). Subsequently, Union Pacific and PTI were dismissed from the case after it
was determined that their conduct did not cause the accident. Plaintiff ultimately reached a
settlement with Bell in the amount of $20,000, the maximum amount of his liability coverage.
¶5 On October 17, 2012, while her negligence action was pending, plaintiff filed a three-count
complaint for declaratory judgment and other relief in the chancery division of the circuit court
against PTI, Union Pacific, and ACE American Insurance Company (ACE). In count I, plaintiff
alleged that PTI was legally responsible for her damages because it was in violation of section
8-101(c) of the Illinois Vehicle Code (625 ILCS 5/8-101(c) (West 2010)). The version of
section 8-101(c) in effect at the time of the accident required “a contract carrier transporting
employees in the course of their employment on a highway of this State in a vehicle designed
to carry 15 or fewer passengers” to maintain uninsured and underinsured motor vehicle
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coverage “in a total amount of not less than $250,000 per passenger.” Id. The statute required
affected contract carriers to file proof of financial responsibility with the Secretary of State. Id.Pursuant to section 8-116 of the Vehicle Code, a contract carrier who failed to comply with
section 8-101(c) was guilty of a Class A misdemeanor. Id. § 8-116.
¶6 Plaintiff alleged that PTI’s liability policy did not meet the statutory minimum because its
uninsured and underinsured motor vehicle coverage was limited to $20,000 per passenger and
$40,000 per occurrence. She sought a judicial declaration that PTI was legally responsible for
her damages sustained in the accident in excess of Bell’s insurance policy limits, up to a
maximum of $250,000. 1
¶7 PTI initially filed an answer and affirmative defenses on April 23, 2013. On October 2,
2013, PTI filed its amended answer, five affirmative defenses, and counterclaim. The first four
affirmative defenses alleged that sections 8-101(c) and 8-116 of the Vehicle Code were
unconstitutional. First, PTI alleged that the statutes constitute prohibited special legislation, in
violation of article IV, section 13, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. IV,
§ 13).
¶8 Second, PTI alleged that the statutes violate the equal protection clauses in the state and
federal constitutions (Ill. Const. 1970, art. I, § 2; U.S. Const., amend. XIV), on the grounds
that “no other motor vehicle passenger carriers in Illinois are burdened with the unique
requirement of maintaining such insurance, and there is no reasonable basis to impose such a
requirement on PTI and others who are similarly situated.”
¶9 Third, PTI alleged that the statutes violate the due process clauses in the state and federal
constitutions (Ill. Const. 1970, art. I, § 2; U.S. Const., amend. XIV) because they “are
unconstitutionally vague and uncertain *** in that the underinsured motorist insurance
requirements contained therein make ambiguous references to vehicles designed to carry
‘fifteen or fewer’ passengers and impose ambiguous levels of insurance in a ‘total amount’ of
‘not less than $250,000 per passenger.’ ”
¶ 10 Fourth, PTI alleged that the statutes “constitute an undue and unreasonable burden on
interstate commerce,” in violation of the commerce clause of the United States Constitution
(U.S. Const., art. I, § 8, cl. 3), “in that contract motor carriers, such as PTI, which transport
passengers in interstate commerce, could not know how much underinsured motorist coverage
to obtain in advance of operating, *** and this and other burdens imposed by the statute would
unreasonably burden PTI and other similarly situated contract carriers.”
¶ 11 PTI’s fifth affirmative defense alleged that section 8-101(c) does not provide any civil
remedy for statutory violations. It alleged that the criminal penalty in section 8-116 is the sole
enforcement mechanism for section 8-101(c) and, thus, plaintiff could not rely on the statute
as grounds for filing a private cause of action.
¶ 12 Along with its amended answer and affirmative defenses, PTI filed a separate counterclaim
seeking a declaratory judgment against plaintiff and the State of Illinois, by and through the
Illinois Attorney General and the Illinois Secretary of State. The counterclaim restated the
identical constitutional arguments alleged in PTI’s first four affirmative defenses. The
constitutional claims were the only legal grounds set forth in the counterclaim. In its prayer for
1
Counts II and III of the complaint against Union Pacific and ACE were dismissed with prejudice
and are not at issue in this appeal.
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relief, PTI asked that the trial court declare unconstitutional section 8-101(c) and section 8-
116, to the extent it applies to section 8-101(c). PTI also requested “that [plaintiff’s]
declaratory judgment action be dismissed with prejudice as to PTI.”
¶ 13 On December 3, 2013, then-Attorney General Lisa Madigan filed a motion to dismiss the
counterclaim pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (735 ILCS
5/2-615, 2-619 (West 2010)). Attorney General Madigan argued that PTI’s claims should be
dismissed because it failed to follow the procedure set forth in Illinois Supreme Court Rule 19
(eff. Sept. 1, 2006). Under this rule, a party challenging the constitutionality of a statute must
provide notice to the Attorney General in order to afford the appropriate state officer “the
opportunity, but not the obligation, to intervene in the cause or proceeding for the purpose of
defending” the statute. Ill. S. Ct. R. 19(c) (eff. Sept. 1, 2006). Here, PTI avoided this process
by filing a declaratory judgment action directly against state officials. Thus, Attorney General
Madigan argued that the counterclaim should be dismissed as procedurally improper.
¶ 14 Attorney General Madigan also argued that PTI’s constitutional claims failed on the merits.
Thus, the counterclaim should be dismissed with prejudice. Alternatively, she suggested that
the court could avoid addressing the constitutional issues by resolving the case on
nonconstitutional grounds, i.e., by holding that section 8-101(c) does not provide for a private
cause of action.
¶ 15 In response, PTI argued that deciding the case on nonconstitutional grounds would not
completely resolve its counterclaim, for the following reasons:
“This Court’s declaration that 5/8-101(c) does not provide a civil remedy would
not be binding in other civil cases brought by other plaintiffs against PTI under the
statute. Moreover, such a finding would not fix PTI’s rights regarding any criminal
prosecution that might be conducted against PTI under the statute. Resolving PTI’s
counterclaim, which seeks a determination that the offending UM/UIM insurance
obligation imposed by 5/8-101(c) is unconstitutional, is the only way to finally
determine the rights of all of the parties to this case.”
¶ 16 With leave of court, on May 16, 2014, PTI filed its third amended counterclaim naming
Illinois Secretary of State Jesse White and plaintiff as the only counterdefendants. On the same
day, PTI filed a motion to dismiss count I of plaintiff’s complaint, arguing that section 8-101(c)
does not provide for an express or implied private right of action. PTI also argued that its
vehicles did not fit the definition of “a vehicle designed to carry 15 or fewer passengers” and,
therefore, that section 8-101(c) was inapplicable.
¶ 17 On January 30, 2015, the trial court entered an order granting the State’s motion to dismiss
the third amended counterclaim with prejudice. In a written decision, the court examined all of
PTI’s constitutional claims and determined that each of the claims lacked merit. The court did
not address any procedural irregularities presented by the counterclaim, nor did it address the
private right of action or statutory interpretation issues raised by PTI.
¶ 18 On May 12, 2015, PTI filed a renewed motion to dismiss count I of the complaint. On July
24, 2015, the trial court entered an order denying the motion. The court held that the statute
did provide for an implied private right of action and, therefore, that count I need not be
dismissed on that basis. PTI filed a motion to reconsider or for certification under Illinois
Supreme Court Rule 308 (eff. July 1, 2017). The trial court denied the motion to reconsider
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but granted the motion to certify a question under Illinois Supreme Court Rule 308. However,
on January 13, 2016, the appellate court exercised its discretion to deny PTI’s appeal.
¶ 19 Subsequently, plaintiff filed a motion in the trial court to voluntarily dismiss her complaint.
On December 13, 2016, the trial court ordered the case dismissed without prejudice upon
plaintiff’s motion.
¶ 20 After the voluntary dismissal of the case, PTI filed a timely notice of appeal seeking review
of the court’s January 30, 2015, order dismissing its counterclaim. PTI alleged the appellate
court had jurisdiction because the December 13, 2016, voluntary dismissal of the case rendered
all prior final orders in the case appealable. 2 While the appeal was pending, on January 26,
2017, plaintiff refiled her complaint in the trial court. The trial court ordered a stay of the matter
pending resolution of PTI’s appeal.
¶ 21 In the appellate court, PTI reversed its previous position. It argued that there was no need
for the appellate court to reach the constitutional issues if the court determined that plaintiff
had no private right of action under the statute. PTI conceded that the trial court’s order denying
its motion to dismiss based on the private right of action issue was a nonfinal order.
Nevertheless, PTI argued that the appellate court could address the legal basis for its motion
as a means of resolving the case on nonconstitutional grounds. See Marconi v. City of Joliet,
2013 IL App (3d) 110865, ¶ 16 (the appellate court has a duty to “avoid the adjudication of
constitutional questions when a case can be decided on other grounds”).
¶ 22 On June 26, 2018, the appellate court filed a published opinion affirming the trial court’s
dismissal of the counterclaim, but on different grounds than those relied on by the trial court.
2018 IL App (1st) 170075, ¶¶ 24-25. Addressing the issue of whether a private right of action
was implied in the statute, the court held that the criminal and civil penalties for violations of
section 8-101(c) 3 were sufficient enforcement mechanisms, rendering unnecessary a separate
civil remedy for injured plaintiffs. Id. ¶¶ 21-23. Thus, the court held that the statute did not
provide for an implied private right of action (id. ¶ 24) and, accordingly, that “Carmichael’s
complaint against PTI should have been dismissed” (id. ¶ 2). The court further held that it need
not reach the constitutional issues raised in the counterclaim because its decision rendered the
counterclaim moot. Id. ¶ 24.
¶ 23 This court allowed plaintiff’s petition for leave to appeal (Ill. S. Ct. R. 315(a) (eff. July 1,
2018)) and granted the State’s motion for leave to intervene. PTI requests cross-relief on the
constitutional issues raised in its counterclaim.
¶ 24 ANALYSIS
¶ 25 The order at issue in this appeal is the trial court’s January 30, 2015, order dismissing PTI’s
third amended counterclaim with prejudice. Section 2-608 of the Code of Civil Procedure
governs the filing of counterclaims. 735 ILCS 5/2-608 (West 2010). Section 2-608 provides:
2
“It is well settled that final orders entered in a case become appealable following a voluntary
dismissal.” Dubina v. Mesirow Realty Development, Inc., 178 Ill. 2d 496, 503 (1997).
3
In addition to the criminal penalty in section 8-116, the Vehicle Code provides that contract
carriers who cancel or withdraw their insurance policy required by section 8-101(c) are subject to
suspension of their vehicle registrations. 625 ILCS 5/8-113 (West 2010).
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Ҥ 2-608. Counterclaims. (a) Any claim by one or more defendants against one or
more plaintiffs, or against one or more codefendants, whether in the nature of setoff,
recoupment, cross claim or otherwise, and whether in tort or contract, for liquidated or
unliquidated damages, or for other relief, may be pleaded as a cross claim in any action,
and when so pleaded shall be called a counterclaim.
(b) The counterclaim shall be a part of the answer, and shall be designated as a
counterclaim. Service of process on parties already before the court is not necessary.
(c) Every counterclaim shall be pleaded in the same manner and with the same
particularity as a complaint, and shall be complete in itself, but allegations set forth in
other parts of the answer may be incorporated by specific reference instead of being
repeated.
(d) An answer to a counterclaim and pleadings subsequent thereto shall be filed as
in the case of a complaint and with like designation and effect.” (Emphasis added.) Id.
¶ 26 This court has defined a counterclaim as “an independent cause of action” “in favor of the
defendant against the plaintiff, which the defendant is authorized to litigate in opposition to
the plaintiff’s claim in the same action.” Wilson v. Tromly, 404 Ill. 307, 309-10 (1949). As an
independent action, a counterclaim “must stand or fall on its own merits, regardless of the
disposition of the complaint.” Health Cost Controls v. Sevilla, 307 Ill. App. 3d 582, 589 (1999);
see also 735 ILCS 5/2-608(c) (West 2010) (“[e]very counterclaim *** shall be complete in
itself”). “In order to state a cause of action, [a] counterclaim must be both legally sufficient
and factually sufficient, setting forth a legally recognized claim as its basis for recovery, as
well as pleading facts which bring the claim within the legally recognized cause of action
alleged.” Nuccio v. Chicago Commodities, Inc., 257 Ill. App. 3d 437, 443 (1993). In contrast
to an affirmative defense, which merely seeks to defeat the plaintiff’s cause of action by a
denial or confession and avoidance, a counterclaim seeks affirmative relief. Wilson, 404 Ill. at
309; Citicorp Savings of Illinois v. Rucker, 295 Ill. App. 3d 801, 806 (1998); In re Estate of
Soderholm, 127 Ill. App. 3d 871, 875 (1984).
¶ 27 A purported counterclaim that fails to allege an independent, substantive cause of action
against the plaintiff and fails to make a specific prayer for relief is not a true counterclaim. See
Rayman v. Peoples Savings Corp., 735 F. Supp. 842, 852 (N.D. Ill. 1990) (“The label
‘counterclaim’ has no magic. What is really an ‘answer or defense to a suit does not become
an independent piece of litigation because of its label ***.’ ” (quoting Tenneco Inc. v. Saxony
Bar & Tube, Inc., 776 F.2d 1375, 1379 (7th Cir. 1985))). For instance, in Kendle v. Village of
Downers Grove, 156 Ill. App. 3d 545, 554 (1987), the court held that neither of the defendants’
answers “contained a specific prayer for relief or raised a substantive cause of action against
plaintiffs.” Thus, they could not be considered counterclaims. Id. at 553-54.
¶ 28 By contrast, in Soderholm, 127 Ill. App. 3d 871, the court held that a responsive pleading
was, in actuality, a counterclaim. The plaintiffs in that case filed a declaratory judgment action
seeking a judicial determination that Myrtle B. Soderholm, an incompetent person, had the
requisite mental capacity to create a number of trust accounts under which the plaintiffs were
the beneficiaries. Id. at 873. In response, LaSalle National Bank, the conservator of
Soderholm’s estate, filed an answer alleging in part that plaintiffs had fraudulently abused a
fiduciary relationship they owed to her. Id. In its prayer for relief, the bank asked the court to
order plaintiffs to turn over any property in their possession belonging to Soderholm and
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requested a judicial declaration that plaintiffs had no legal or equitable rights in any of
Soderholm’s property. Id. at 873-74. The appellate court held that the bank’s answer
constituted a viable counterclaim because it contained independent allegations against
plaintiffs in support of its claims for relief. Id. at 875.
¶ 29 A counterclaim that requests no affirmative relief and only seeks to defeat the plaintiff’s
claims is really an affirmative defense, not a counterclaim. See Rayman, 735 F. Supp. at 852-
53. For this reason, the federal courts routinely hold that counterclaims that essentially
duplicate the parties’ affirmative defenses should be dismissed or disregarded by the trial court
as repetitious and unnecessary. See Malibu Media, LLC v. Parsons, No. 12-1331 (BAH), 2013
WL 12324463, at *10 (D.D.C. May 31, 2013) (“[I]f the defendant prevails on these
[affirmative] defenses, the result she seeks in the counterclaims will be moot. In these
circumstances, the redundant counterclaims are simply superfluous ***.”); Malibu Media,
LLC v. Doe 1, No. DKC 12-1198, 2012 WL 6681990, at *3 (D. Md. Dec. 21, 2012) (“Courts
have typically declined to consider counterclaims for declaratory relief that are duplicative of
affirmative defenses.” (collecting cases)); Rayman, 735 F. Supp. at 853 (count of counterclaim
that duplicated affirmative defense added nothing to the pleadings already before the court and
would be disregarded).
¶ 30 Turning to the language in PTI’s third amended counterclaim, the first seven paragraphs
summarize the declaratory judgment action filed by plaintiff against PTI. Following these
summary paragraphs, paragraph eight alleges:
“8. PTI’s Amended Answer raises affirmative defenses I-IV, directed against 625
ILCS 5/8-101(c) which assert that said statute is unconstitutional, and the claims of
unconstitutionality are hereby restated as follows:”
Paragraphs 8(a) through 8(d) then restate the identical constitutional arguments set forth in
PTI’s affirmative defenses. The remaining paragraphs in the counterclaim allege:
“9. JESSE WHITE, ILLINOIS SECRETARY OF STATE, is an appropriate party
in this case because he is charged with enforcing the Illinois Vehicle Code, particularly
625 ILCS 5/8-101(c), which is relied upon by MARY TERRY CARMICHAEL, and
which PTI alleges is unconstitutional.
10. No other motor carriers in Illinois, other than those who contract to transport
employees in the course of their employment in vehicles designed to carry 15 or fewer
passengers, are required to carry underinsured motorist insurance coverage in the
amount of $250,000 per passenger.
11. There is no reasonable basis for concluding that those motor carriers who
transport employees in the course of their employment in motor vehicles designed to
carry 15 passengers or less, are more likely to have their vehicles struck by
underinsured motorists, or that motor carriers, such as PTI, should be singled out by
law and burdened with the unique obligation to secure $250,000 in underinsured
motorist coverage, per passenger, to guard against such an eventuality.
12. According to the terms of 625 ILCS 5/8-101(c) and related penal statute, 625
ILCS 5/8-116, PTI, and others similarly situated, could avoid the penal terms of the
statute by owning and operating motor vehicles designed to carry 16 or fewer
passengers, rather than 15 or fewer passengers, and there is no reasonable basis for
making such a distinction in the penal reach of said statute.
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13. House Transcript, 2005 Regular Session No. 28, which pertains to the passage
of 625 ILCS 5/8-101(c), documents that the underinsured motorist insurance provision
at issue was enacted at the behest of railroad labor unions which sought to burden
contract motor carriers who transported their union membership with the unique
obligation to carry underinsured motorist insurance coverage in no less an amount than
$250,000 per passenger. (See, EXHIBIT C attached hereto).
14. Plaintiff, MARY TERRY CARMICHAEL, is a railroad union member who has
brought her declaratory judgment action against PTI, in an attempt to benefit from the
special legislation that was enacted at her union’s behest, allegedly burdening PTI, and
others similarly situated, with the obligation to obtain underinsured motorist insurance
coverage in an amount no less than $250,000 per passenger.
15. That by virtue of the foregoing, there is a case or controversy existing between
PTI, MARY TERRY CARMICHAEL and JESSE WHITE, ILLINOIS SECRETARY
OF STATE, and according to the terms and provisions of 735 ILCS 5/2-701, this Court
is vested with the power to declare the rights and liabilities of the parties hereto, as
regards the constitutionality of 625 ILCS 5/8-101(c).
WHEREFORE, Defendant/Counter-Plaintiff, PROFESSIONAL
TRANSPORTATION, INC. prays that 625 ILCS 5/8-101(c) which is cited as the basis
for MARY TERRY CARMICHAEL’S cause of action against PROFESSIONAL
TRANSPORTATION, INC., be declared unconstitutional, null and void; that the penal
provision in 625 ILCS 5/8-116 be declared unconstitutional as applied to the provisions
of 625 ILCS 5/8-101(c) here at issue; that MARY TERRY CARMICHAEL’S
declaratory judgment action be dismissed with prejudice as to PTI; and that PTI be
awarded such further relief as seems just and proper.”
¶ 31 It is clear that PTI’s counterclaim does not state an independent cause of action against
plaintiff. Instead, it requests a declaratory judgment on the identical legal grounds PTI already
asserted in its affirmative defenses. Furthermore, the counterclaim’s prayer for relief requests
that the trial court declare the statutes forming the basis of plaintiff’s complaint
unconstitutional and dismiss the complaint with prejudice. It is apparent from this language
that the only purpose of the counterclaim is to defeat plaintiff’s claim against PTI based on
allegations that the statute is unconstitutional, i.e., that “the claim asserted against defendant is
barred by other affirmative matter avoiding the legal effect of or defeating the claim” (735
ILCS 5/2-619(a)(9) (West 2010)). Since the counterclaim requests no affirmative relief other
than a judicial declaration that the claim filed against PTI is barred, it is not an actual
counterclaim. Moreover, because the purported counterclaim essentially duplicates the claims
in PTI’s affirmative defenses without requesting affirmative relief, it is superfluous and carries
no legal weight as an independent action against plaintiff. See Rayman, 735 F. Supp. at 853.
¶ 32 With respect to PTI’s claims against the Secretary of State, its counterclaim is also not a
true counterclaim. PTI asserts that it must expend significant sums to procure the uninsured
and underinsured motorist coverage required by section 8-101(c) of the Vehicle Code or risk
the loss of its operating privileges. It contends that this establishes an independent cause of
action against Secretary White separate from its cause of action against plaintiff. However, we
reject any suggestion that this means PTI’s purported counterclaim is a true counterclaim. “A
counterclaim is an action brought by a named party against another existing party to the action,
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and is governed by section 2-608 of the Illinois Code of Civil Procedure [citation].” (Emphasis
added.) People v. Fiorini, 143 Ill. 2d 318, 329 (1991). Secretary White was not an existing
party to the action at the time PTI filed its counterclaim. PTI attempted to bring him into the
action as a new party. Accordingly, PTI’s cause of action against Secretary White is not an
actual counterclaim. 4
¶ 33 PTI’s claim against the Secretary of State appears to be a claim for declaratory judgment
based on the constitutionality of the statutes at issue in this case. PTI inserted its claim against
Secretary White into a counterclaim in the present litigation. This was improper. Rather than
bringing in Secretary White as a named party to its purported counterclaim, PTI should have
followed the procedure in Illinois Supreme Court Rule 19 (eff. Sept. 1, 2006). Rule 19 requires
that a litigant raising a constitutional challenge to a statute “shall serve an appropriate notice
thereof on the Attorney General, State’s Attorney, municipal counsel or agency attorney, as
the case may be.” Ill. S. Ct. R. 19(a) (eff. Sept. 1, 2006). The purpose of Rule 19 is to “afford
the State, political subdivision, agency or officer, as the case may be, the opportunity, but not
the obligation, to intervene in the cause or proceeding for the purpose of defending the law or
regulation challenged.” Ill. S. Ct. R. 19(c) (eff. Sept. 1, 2006). Accordingly, at the time it filed
its answer and affirmative defenses, PTI should have notified the Illinois Attorney General of
its intention to challenge the constitutionality of sections 8-101(c) and 8-116 of the Vehicle
Code. The Attorney General then would have had the option to intervene in the proceeding for
the purpose of defending the statutes.
¶ 34 Although the deficiencies in the counterclaim are readily apparent, the parties and the lower
courts nevertheless treated the counterclaim as though it were a complete, independent cause
of action seeking affirmative relief against plaintiff and Secretary White. This was error that
led to several procedural irregularities. For one, the appellate court’s decision was based solely
on the legal grounds alleged in PTI’s motion to dismiss plaintiff’s complaint. As a result, PTI
effectively attained appellate review of its motion to dismiss, even though the trial court’s July
24, 2015, order denying that motion was neither final nor appealable. See Vasquez Gonzalez
v. Union Health Service, Inc., 2018 IL 123025, ¶ 10 (an order denying a motion to dismiss is
not a final and appealable order). 5 This result illustrates why it is improper to treat PTI’s
purported counterclaim as a true counterclaim. By filing a separate “counterclaim” that
duplicated its affirmative defenses, PTI was rewarded with appeal rights to which it was
otherwise not entitled.
¶ 35 Another odd aspect to this case is that the appellate court declined to address the legal
issues raised in the counterclaim. Instead, at PTI’s request, the appellate court held that
plaintiff’s complaint “should have been dismissed” on the grounds that there was no private
cause of action implied in the statute. 2018 IL App (1st) 170075, ¶ 2. Thus, the appellate court
ruled on the merits of the complaint despite the fact that it had been voluntarily dismissed and
plaintiff’s refiled complaint was pending in the trial court below. In so ruling, the appellate
4
Nor can defendant’s cause of action against Secretary White be recharacterized as a third-party
complaint because it does not seek indemnification or contribution for defendant’s liability to plaintiff.
See 735 ILCS 5/2-406(b) (West 2010); People v. Brockman, 143 Ill. 2d 351, 364-65 (1991).
5
The December 13, 2016, voluntary dismissal did not render the July 24, 2015, order appealable
because a denial of a motion to dismiss is not final in nature. See Saddle Signs, Inc. v. Adrian, 272 Ill.
App. 3d 132, 140 (1995).
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court essentially approved PTI’s strategy of treating the counterclaim as an independent action
for purposes of jurisdiction, while treating it as an affirmative defense for purposes of deciding
the merits.
¶ 36 All of the procedural anomalies in this case stem from PTI’s improperly filed counterclaim.
The purported counterclaim is not an actual counterclaim because it does not state an
independent cause of action or request affirmative relief against counterdefendants. The only
issues raised in the counterclaim—constitutional challenges to sections 8-101(c) and 8-116 of
the Vehicle Code—were already before the trial court in the form of affirmative defenses. We
therefore strike the counterclaim as duplicative of PTI’s affirmative defenses. We also vacate
both the trial court’s order dismissing the counterclaim on the merits and the appellate court’s
judgment on appeal from that order. Further, we remand to the trial court, where PTI is free to
proceed on its affirmative defenses as if the counterclaim had never been filed.
¶ 37 We express no opinion on the constitutional or private right of action issues raised and
argued by the parties. Although this court has supervisory authority to evaluate judgments of
the lower courts (Ill. Const. 1970, art. VI, § 16), that authority should be reserved for
exceptional circumstances. See People ex rel. Birkett v. Bakalis, 196 Ill. 2d 510, 515 (2001).
In the case at bar, it would be inappropriate for us to exercise our supervisory authority at this
stage in the proceedings. Had PTI not filed its improper counterclaim, it would not have had a
right to appeal the order denying its motion to dismiss the complaint. As we stated earlier, an
order denying a motion to dismiss is neither final nor appealable. Accordingly, if we were to
decide the issues raised in PTI’s affirmative defenses, we would be rewarding PTI for
circumventing the normal appellate process. See Bakalis, 196 Ill. 2d at 513 (supervisory orders
are “disfavored” and to be used only if “the normal appellate process will not afford adequate
relief”).
¶ 38 CONCLUSION
¶ 39 For the foregoing reasons, the trial court’s January 30, 2015, order and the appellate court’s
judgment are hereby vacated. The cause is remanded to the circuit court for further proceedings
consistent with this opinion.
¶ 40 Judgments vacated.
¶ 41 Cause remanded.
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