The Carle Foundation v. Cunningham Township , 2016 IL App (4th) 140795 ( 2016 )


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  •                                                                     FILED
                                2016 IL App (4th) 140795                 January 5, 2016
                                                                          Carla Bender
                           NOS. 4-14-0795, 4-14-0845, cons.           th
                                                                     4 District Appellate
                                                                            Court, IL
                              IN THE APPELLATE COURT
    
                                     OF ILLINOIS
    
                                  FOURTH DISTRICT
    
    THE CARLE FOUNDATION, an Illinois Not-for-         )  Appeal from
    Profit Corporation,                                )  Circuit Court of
               Plaintiff-Appellee,                     )  Champaign County
               v.                                      )  No. 8L202
    CUNNINGHAM TOWNSHIP; DAN STEBBINS, in              )
    His Official Capacity as Cunningham Township       )
    Assessor; and CITY OF URBANA,                      )
               Defendants-Appellants,                  )
               and              (No. 4-14-0795)        )
    THE CHAMPAIGN COUNTY BOARD OF REVIEW;              )
    ELIZABETH BURGENER-PATTON; MARK                    )
    WHITSITT; JOSEPH MEENTS; DANIEL J. WELCH;          )
    and THE COUNTY OF CHAMPAIGN,                       )
               Separate Appellants,                    )
               and                                     )
    THE DEPARTMENT OF REVENUE; BRIAN                   )
    HAMER, in His Official Capacity as Director of the )  Honorable
    Department of Revenue; and DIANNE HAYS,            )  Charles McRae Leonhard,
               Defendants.                             )  Judge Presiding.
    ______________________________________________________________________________
    
    THE CARLE FOUNDATION, an Illinois Not-for-        )       Appeal from
    Profit Corporation,                               )       Circuit Court of
               Plaintiff-Appellee,                    )       Champaign County
               v.                                     )       No. 8L202
    THE DEPARTMENT OF REVENUE and BRIAN               )
    HAMER, Its Director,                              )
               Defendants-Appellants,                 )
               and              (No. 4-14-0845)       )
    THE CHAMPAIGN COUNTY BOARD OF REVIEW;             )
    MARK WHITSITT, LAURA SANDEFUR, and                )
    ELIZABETH BURGENER-PATTON, as Members of          )
    The Champaign County Board of Review; JOSEPH      )
    MEENTS, Champaign County Supervisor of            )
    Assessments; CUNNINGHAM TOWNSHIP; DAN             )
    STEBBINS, Cunningham Township Assessor;           )
    DANIEL J. WELCH, Champaign County Treasurer;                  )
    THE CITY OF URBANA; URBANA SCHOOL                             )       Honorable
    DISTRICT 116; and THE URBANA PARK DISTRICT,                   )       Charles McRae Leonhard,
             Defendants.                                          )       Judge Presiding.
    
    
                   JUSTICE APPLETON delivered the judgment of the court, with opinion.
                   Justices Turner and Steigmann concurred in the judgment and opinion.
    
                                                OPINION
    
    ¶1             Plaintiff, The Carle Foundation, brought this action to establish that four of its
    
    properties were exempt from real estate taxation. The trial court granted a partial summary
    
    judgment that section 15-86 of the Property Tax Code (Code) (35 ILCS 200/15-86 (West 2014))
    
    governed that question. Defendants, the state and local taxing authorities, appeal pursuant to
    
    Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010).
    
    ¶2             We conclude that because section 15-86 is unconstitutional, it is inapplicable to
    
    the question of whether the four parcels are exempt from taxation. Therefore, we reverse the
    
    trial court's judgment, and we remand this case for further proceedings.
    
    ¶3                                      I. BACKGROUND
    
    ¶4                                     A. The Four Parcels
    
    ¶5             Plaintiff owns four parcels of land in Urbana: 611 West Park Street, 503 North
    
    Coler Avenue, 607 North Orchard Street, and 809 West Park Street. Plaintiff's affiliate, Carle
    
    Foundation Hospital, operates a hospital on two of these parcels. On the third parcel is a day
    
    care center, which serves the families of plaintiff's employees (among others). On the fourth
    
    parcel is a power plant, which services these parcels.
    
    ¶6                            B. The Reclassification of the Parcels
                                      from Exempt to Nonexempt
    
    
    
    
                                                    -2-
    ¶7             Before 2004, the four parcels were not taxed. They were considered to be exempt
    
    under section 15-65(a) of the Code (35 ILCS 200/15-65(a) (West 2002)), because of charitable
    
    use.
    
    ¶8             For 2004, however, the Cunningham township assessor began assessing the four
    
    parcels at their full value, as nonexempt. She continued doing so through 2011.
    
    ¶9                  C. Plaintiff Applies for the Restoration of the Exemptions
                                       For the Years 2004 and 2005
    
    ¶ 10           Plaintiff filed applications with the county board of review, asking the board to
    
    exempt the four parcels from taxation for the years 2004 and 2005. The board forwarded these
    
    applications to the Department of Revenue (Department), along with a recommendation of
    
    denial.
    
    ¶ 11           On February 23, 2007, the Department denied plaintiff's applications for 2004 and
    
    2005, whereupon plaintiff requested an administrative hearing.
    
    ¶ 12                              D. Our Intervening Decision
                             in Carle Foundation v. Department of Revenue
    
    ¶ 13           On December 13, 2007, plaintiff filed an action in the circuit court against the
    
    Department and various local governmental entities, seeking a declaratory judgment that, under
    
    section 15-65, the four parcels were exempt from taxation for the years 2004 to 2007.
    
    (Eventually, plaintiff filed an exemption application with the board for 2008 as well.)
    
    ¶ 14           On March 3, 2009, the circuit court certified some questions for interlocutory
    
    appeal (see Ill. S. Ct. R. 308(a) (eff. Feb. 1, 1994)), requesting guidance on the meaning of the
    
    statutory phrase "court proceedings to establish an exemption," in section 23-25(e) of the Code
    
    (35 ILCS 200/23-25(e) (West 2008)).
    
    
    
    
                                                   -3-
    ¶ 15           On October 29, 2009, we held that, in cases in which the Department or a court of
    
    review had acted favorably on a comparable exemption claim for any other year, section 23-
    
    25(e) had effectively revived the traditional suit in equity to establish an exemption. Carle
    
    Foundation v. Illinois Department of Revenue, 
    396 Ill. App. 3d 329
    , 341 (2009). We further held
    
    that a taxpayer had to elect its remedy instead of simultaneously pursuing both a judicial action
    
    under section 23-25(e) and an application before the Department. Id. at 342. Because no court,
    
    however, had ever before interpreted section 23-25(e), we allowed plaintiff, on remand, to elect
    
    one of those remedies. Id. at 343.
    
    ¶ 16               E. Plaintiff Withdraws Its Applications for 2004 and 2005
                   and Enters into an Anti-Preclusion Agreement with the Department
    
    ¶ 17           On August 18, 2010, when the applications for 2004 and 2005 were about to go to
    
    an administrative hearing, plaintiff informed the administrative law judge that it was
    
    withdrawing its applications for 2004 and 2005. Accordingly, the administrative hearing was
    
    canceled.
    
    ¶ 18           Despite plaintiff's expressed desire to withdraw the applications for 2004 and
    
    2005, the Department went ahead and issued plaintiff formal letters denying these applications.
    
    ¶ 19           Plaintiff never requested a rehearing.
    
    ¶ 20                     F. Plaintiff Files Applications for 2006 to 2008
                             and Later Withdraws Those Applications, Too
    
    ¶ 21           As we said, plaintiff likewise filed, with the county board, applications to exempt
    
    the four parcels for the years 2006, 2007, and 2008. The board likewise recommended the denial
    
    of those applications and forwarded them to the Department for decision.
    
    
    
    
                                                   -4-
    ¶ 22              In March 2012, plaintiff informed the Department it was withdrawing its
    
    applications for 2006 to 2008. As of that time, the Department had not yet made an initial
    
    decision on those applications.
    
    ¶ 23              On March 29, 2012, despite plaintiff's notification of withdrawal, the Department
    
    issued formal denials of the applications for 2006 to 2008. Plaintiff never requested an
    
    administrative hearing.
    
    ¶ 24                      G. Plaintiff Filed No Applications for 2009 to 2011
    
    ¶ 25              Plaintiff filed with the board no application to exempt the four parcels from
    
    taxation for 2009, 2010, and 2011.
    
    ¶ 26                              H. The Fourth Amended Complaint
    
    ¶ 27              Plaintiff claims, in its fourth amended complaint, that the four parcels should be
    
    exempt from real estate taxes during the assessment years 2004 to 2011 on the ground of
    
    charitable use.
    
    ¶ 28              The fourth amended complaint has 35 counts. If we were to organize them by the
    
    legal theories they advance, these counts would fall into four categories.
    
    ¶ 29              The first category would consist of a single count, count I. In this count, plaintiff
    
    alleges that preexisting exemptions of the four parcels never were validly discontinued.
    
    Sometime before 2004, the Department or its predecessor agency determined the four parcels to
    
    be exempt, and, in plaintiff's view, the local taxing officials lacked the statutory authority to
    
    override the Department's determination and end the exemptions.
    
    ¶ 30              The second category would consist of counts III through XXXIV (we have not
    
    forgotten about count II; we will come to it in a moment). In those counts, plaintiff alleges that
    
    if, contrary to plaintiff's position in count I, the local taxing authorities had authority to return the
    
    
    
                                                       -5-
    four parcels to the tax rolls and "thereby force [plaintiff] to establish anew its entitlement to an
    
    exemption on those properties, de novo consideration of the exemption issue [would lead] to the
    
    conclusion that [plaintiff] has satisfied the legal criteria for an exemption for each of the parcels
    
    and tax years in question," 2004 to 2011. Those "legal criteria," according to counts III through
    
    XXXIV, are to be found in the recently enacted section 15-86 (35 ILCS 200/15-86 (West 2014)),
    
    added to the Code by Public Act 97-688 (Pub. Act 97-688, § 5-55 (eff. June 14, 2012)); or,
    
    alternatively, if section 15-86 is inapplicable, the "legal criteria" are to be found in an older
    
    provision of the Code, section 15-65 (35 ILCS 200/15-65 (West 2014)).
    
    ¶ 31           The third category would consist of count II, which seeks a declaratory judgment
    
    "that Section 15-86 applies to any determination of [plaintiff's] entitlement to exemptions for the
    
    Four Parcels for tax assessment years 2004 through 2011."
    
    ¶ 32           The fourth and final category would consist of count XXXV, in which plaintiff
    
    alleges the breach of a settlement agreement from 2002. Allegedly, under this settlement
    
    agreement, plaintiff paid $775,000 to various local taxing bodies, including Cunningham
    
    Township and the City of Urbana, and, in return, the local taxing bodies promised to "refrain
    
    from taking any action to challenge [plaintiff's] entitlement to charitable exemptions with respect
    
    to certain properties owned by [plaintiff], including the Four Parcels involved in this litigation."
    
    Plaintiff accuses Cunningham Township and City of Urbana of breaking that promise.
    
    ¶ 33                        I. Summary Judgment in Plaintiff's Favor
                              on Count II of the Fourth Amended Complaint
    
    ¶ 34           Plaintiff moved for a summary judgment on count II of its fourth amended
    
    complaint, the count seeking a declaratory judgment that the newly enacted section 15-86 of the
    
    Code (35 ILCS 200/15-86 (West 2014)) applied to the claims for exemption in counts III to
    
    XXXIV, which covered the period of 2004 to 2011.
    
                                                     -6-
    ¶ 35           The trial court granted plaintiff's motion for summary judgment on count II.
    
    Later, on August 28, 2014, in a modified opinion, the court held that section 15-86 applied to
    
    plaintiff's claims of exemption and that by enacting section 15-86, the legislature had repudiated
    
    the supreme court's description of "the distinctive characteristics of a charitable institution," in
    
    Methodist Old Peoples Home v. Korzen, 
    39 Ill. 2d 149
    , 157 (1968). The modified opinion
    
    included a Rule 304(a) finding.
    
    ¶ 36           In addition to the Department, two groups of defendants appeal. We will call the
    
    first group "the township defendants." They consist of Cunningham Township; Dan Stebbins, in
    
    his official capacity as Cunningham township assessor; and the City of Urbana. We will call the
    
    second group "the county defendants." And on the motion of the assistant State's Attorney, we
    
    substitute one of these county defendants for another: Joseph Meents, the current supervisor of
    
    assessments for Champaign County, is substituted for Stan Jenkins, who previously held that
    
    office. The remaining county defendants are Champaign County; the Champaign County Board
    
    of Review; Dianne Hays, Elizabeth Burgener-Patton, and Mark Whitsett, in their official
    
    capacities as members of the Champaign County Board of Review; and Daniel J. Welch, in his
    
    official capacity as the Champaign County treasurer.
    
    ¶ 37                                       II. ANALYSIS
    
    ¶ 38                              A. Our Subject-Matter Jurisdiction
    
    ¶ 39           The trial court granted plaintiff's motion for a summary judgment on count II of
    
    the fourth amended complaint, and the court made a Rule 304(a) finding. The other counts, i.e.,
    
    count I and counts III through XXXV, remain pending. Do we have subject-matter jurisdiction
    
    under Rule 304(a)?
    
    
    
    
                                                     -7-
    ¶ 40           We have a Rule 304(a) finding, but that is not enough. We also must have a final
    
    judgment on a separate claim, or else we lack jurisdiction. Ill. S. Ct. R. 304(a) (eff. Feb. 26,
    
    2010) ("a final judgment as to one or more but fewer than all of the parties or claims"). "[A]
    
    final order under Rule 304(a) must be final in the sense that it disposes of the rights of the
    
    parties, either upon the entire controversy or upon some definite and separate part thereof."
    
    (Emphasis added and internal quotation marks omitted.) In re Estate of French, 
    166 Ill. 2d 95
    ,
    
    101 (1995). A Rule 304(a) cannot create finality where there is none. Kellerman v. Crowe, 
    119 Ill. 2d 111
    , 115 (1987). Without a final judgment on a separate claim, a Rule 304(a) finding is
    
    ineffectual. Id.
    
    ¶ 41           As for whether the summary judgment on count II qualifies as a final judgment on
    
    a separate claim, In re Marriage of Best, 
    228 Ill. 2d 107
     (2008), and In re Marriage of Leopando,
    
    
    96 Ill. 2d 114
     (1983), appear to be the most relevant cases—but the parties are not in unanimity
    
    as to the conclusion to draw from those cases. On the one hand, plaintiff and the township
    
    defendants believe we have jurisdiction under Best. On the other hand, the county defendants
    
    and the Department regard Best as distinguishable, and they believe that, under Leopando, we
    
    lack jurisdiction (although, for safety's sake, the county defendants and the Department filed
    
    their own notices of appeal).
    
    ¶ 42           Let us take a look, then, at Best and Leopando, to see which of those cases the
    
    present case most resembles.
    
    ¶ 43           In Best, Steven Best filed a petition for dissolution of marriage, and afterward he
    
    filed an amended motion for a declaratory judgment, in which he sought a ruling on the validity
    
    and meaning of a premarital agreement. Best, 228 Ill. 2d at 110. The trial court granted his
    
    motion for a declaratory judgment, ruling that (1) the premarital agreement was valid and
    
    
    
                                                    -8-
    enforceable and (2) a waiver of attorney fees, in section 19 of the premarital agreement, was
    
    inapplicable to custody proceedings. Id. The declaratory judgment included a Rule 304(a)
    
    finding, and Steven Best appealed, arguing that, contrary to the declaratory judgment, the waiver
    
    of attorney fees applied to custody proceedings. Id.
    
    ¶ 44           The first thing the appellate court did, upon receiving Steven Best's appeal, was
    
    consider whether it had jurisdiction under Rule 304(a). As the appellate court perceived, that
    
    depended on whether the declaratory judgment was a final judgment on a separate claim. Id. at
    
    112-13. The appellate court concluded it was.
    
    ¶ 45           Having decided it had jurisdiction, the appellate court reversed the declaratory
    
    judgment because, in the appellate court's opinion, the declaratory judgment had failed to
    
    "terminate the controversy[,] or some part thereof, giving rise to the proceeding," as section
    
    2-701(a) of the Code of Civil Procedure (735 ILCS 5/2-701(a) (West 2004)) required declaratory
    
    judgments to do. Best, 228 Ill. 2d at 109.
    
    ¶ 46           The case then went to the supreme court, which disagreed that section 2-701(a)
    
    was unfulfilled. By construing the premarital agreement, the supreme court observed, the
    
    declaratory judgment had indeed terminated part of the controversy. Id. at 117.
    
    ¶ 47           For our purposes, though, the most important discussion in Best comes earlier.
    
    Before reaching the question of whether the declaratory judgment had terminated part of the
    
    controversy, the supreme court scrutinized the appellate court's jurisdiction: the supreme court
    
    considered whether the appellate court was correct in its conclusion that the declaratory
    
    judgment was a final judgment on a separate claim—a prerequisite to jurisdiction under Rule
    
    304(a). Id. at 113.
    
    
    
    
                                                    -9-
    ¶ 48           The appellate court, in its jurisdictional analysis, had identified Leopando as the
    
    case of potential concern. Id. In Leopando, the trial court entered an order dissolving the parties'
    
    marriage, and then the court entered an order awarding permanent custody of the parties' child to
    
    the father. Leopando, 296 Ill. 2d at 116. The custody order made a Rule 304(a) finding and
    
    reserved the issues of maintenance, property division, and attorney fees. Id. Was the custody
    
    order in Leopando appealable under Rule 304(a)?
    
    ¶ 49           The supreme court answered no in Leopando because, instead of resolving a
    
    separate claim, the custody order had resolved an issue within the claim for dissolution of the
    
    parties' marriage. Id. at 119. The supreme court explained:
    
                   "A petition for dissolution advances a single claim; that is, a
    
                   request for an order dissolving the parties' marriage. The
    
                   numerous other issues involved, such as custody, property
    
                   disposition, and support are merely questions which are ancillary
    
                   to the cause of action. [Citation.] They do not represent separate,
    
                   unrelated claims; rather, they are separate issues relating to the
    
                   same claim." (Emphases in original.) Id.
    
    ¶ 50           Given the dichotomy, in Leopando, between a claim and an issue within a claim,
    
    it might have been easy to assume, in Best, that the validity and meaning of the premarital
    
    agreement were issues within the claim for dissolution of marriage—but the appellate court did
    
    not see it that way, and neither did the supreme court. See Best, 228 Ill. 2d at 113. The supreme
    
    court agreed with the appellate court that Leopando was distinguishable and that, unlike the
    
    custody ruling in Leopando, the declaratory judgment was a final judgment on a separate claim.
    
    Id. at 115.
    
    
    
                                                   - 10 -
    ¶ 51           According to the supreme court, Leopando was distinguishable for two reasons.
    
    ¶ 52           First, the trial court in Leopando awarded permanent custody to the father,
    
    whereas in Best the trial court merely issued a declaratory judgment, without making any actual
    
    award. Id. at 114. In Leopando, custody was part of the claim for dissolution of marriage, and,
    
    consequently, by granting custody, the trial court adjudicated part of the same claim instead of
    
    entering a final judgment on a separate claim. By contrast, the validity and meaning of the
    
    premarital agreement in Best were not part of the claim for dissolution of marriage, and by
    
    holding the premarital agreement to be valid and by interpreting section 19 of the premarital
    
    agreement, the trial court merely decided some threshold legal issues without actually awarding
    
    any relief on the claim for dissolution of marriage. In its declaratory judgment, the court did
    
    not—and could not—award custody, for instance, or divide property or dissolve the marriage:
    
    all those things still had to be done. In fact, the trial court in Best could have issued the
    
    requested declaratory judgment without thereafter granting any of the relief the dissolution
    
    petition requested. Therefore, the supreme court reasoned in Best, the motion for a declaratory
    
    judgment was a separate claim. Id. at 115.
    
    ¶ 53           Second, the petitioner in Leopando had requested no relief outside that available
    
    under the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) (Ill. Rev. Stat.
    
    1981, Ch. 40, ¶ 101 et seq.), whereas the petitioner in Best requested relief under both the
    
    Dissolution Act and a separate statute, the declaratory judgment statute (735 ILCS 5/2-701 (West
    
    2004)). Best, 228 Ill. 2d at 114-15. Therefore, "[in contrast] to Leopando, the two requests for
    
    relief here had distinctly different statutory bases," the supreme court observed. Id. at 115.
    
    ¶ 54           For those reasons, the supreme court concluded in Best:
    
    
    
    
                                                    - 11 -
                   "Under the facts and circumstances of this case, the request for
    
                   dissolution of the parties' marriage and the request for declaratory
    
                   judgment on the validity and interpretation of the premarital
    
                   agreement are not so closely related that they must be deemed part
    
                   of a single claim for relief, as they were in Leopando. Thus,
    
                   Leopando is distinguishable." Id.
    
    ¶ 55           Following the lead of the supreme court in Best, we conclude that Leopando
    
    likewise is distinguishable from the present case. It is distinguishable for essentially the same
    
    two reasons.
    
    ¶ 56           First, by issuing a declaratory judgment that section 15-86 (30 ILCS 200/15-86
    
    (West 2014)) applied to plaintiff's claims for a charitable exemption for the assessment years
    
    2004 to 2011, the trial court "did not make any actual awards": the court did not hold that any of
    
    the four parcels actually were exempt for any assessment year. Best, 228 Ill. 2d at 114.
    
    ¶ 57           Second, in the proceedings below, plaintiff "sought nondeclaratory relief" under
    
    the Code (35 ILCS 200/1-1 to 32-20 (West 2014)) "as well as declaratory relief under the
    
    declaratory judgment statute" (735 ILCS 5/2-701 (West 2014)), just as Steven Best sought both
    
    nondeclaratory and declaratory relief. Best, 228 Ill. 2d at 115. Plaintiff invoked two different
    
    statutes. Heinrich v. Peabody International Corp., 
    99 Ill. 2d 344
    , 348 (1984); Rice v. Burnley,
    
    
    230 Ill. App. 3d 987
    , 991 (1992).
    
    ¶ 58           For those reasons, which come straight from Best, we find Leopando to be
    
    distinguishable, and we conclude that we have subject-matter jurisdiction over defendants'
    
    appeals. Count II, on the one hand, and counts III through XXXIV, on the other hand, "are not
    
    so closely related that they must be deemed part of a single claim for relief." Best, 228 Ill. 2d at
    
    
    
                                                   - 12 -
    115. By granting the declaratory relief requested by count II, the trial court entered a final
    
    judgment on a separate claim. See id. In sum, all the ingredients of subject-matter jurisdiction
    
    are here: a Rule 304(a) finding, a final judgment on a separate claim, and timely notices of
    
    appeal.
    
    ¶ 59                    B. An Overview of the Administrative Procedures
                                   for Establishing and Maintaining
                                  an Exemption from Property Taxes
    
    ¶ 60           This is an action pursuant to section 23-25(e) of the Code (35 ILCS 200/23-25(e)
    
    (West 2014)), and as we will explain a little later, the legislature intended, in section 23-25(e), to
    
    provide an exception to the administrative procedures for obtaining an exemption from property
    
    taxes. In order that the reader will understand what section 23-25(e) is an exception to, we will
    
    give this brief overview of the administrative procedures for obtaining an exemption.
    
    ¶ 61                      1. Establishing an Exemption for the First Time
    
    ¶ 62           Although the General Assembly has categorically exempted certain real estate
    
    from taxation (35 ILCS 200/15-35 to 15-185 (West 2014)), anyone wishing to establish an
    
    exemption for a particular parcel of real estate must apply for one. "Any person wishing to claim
    
    an exemption for the first time" must file an application with the county board of review (in
    
    counties with less than 1 million inhabitants) or with the board of appeals (in counties with 1
    
    million or more inhabitants, i.e., Cook County). 35 ILCS 200/15-5 (West 2014); see also 11
    
    Eunice A. Eichelberger, Judicial Review of Assessment, in 11 Illinois Real Property Service
    
    § 59:78 at 62 (Edward W. Jessen & Erwin S. Barbre et al. eds., 1989). (For our purposes, it is
    
    unnecessary to differentiate between the board of review and the board of appeals: we will refer
    
    to them, indiscriminately, as "the board.")
    
    
    
    
                                                    - 13 -
    ¶ 63             The board will make a decision on the application for an exemption, but its
    
    decision will not be final (except as to homestead exemptions). 35 ILCS 200/16-70, 16-130
    
    (West 2014). Rather, the board will "make out and forward to the Department[] a full and
    
    complete statement of all the facts in the case." 35 ILCS 200/16-70 (West 2014). The
    
    Department then will decide whether the property is exempt from taxation, after which it will
    
    notify the board of its decision, and, if necessary, the board will correct the assessment. 35 ILCS
    
    200/16-70, 16-130 (West 2014). At the same time the Department notifies the board of its
    
    exemption decision, the Department will notify the applicant, by certified mail. 35 ILCS 200/8-
    
    35 (West 2014).
    
    ¶ 64             If the Department decides the property is exempt, "any taxes extended upon the
    
    unauthorized assessment shall be abated or, if paid, shall be refunded." 35 ILCS 200/16-70; see
    
    also 35 ILCS 200/16-130 (West 2014). (Payment of taxes will not be delayed by the board's
    
    consideration of the application or by the Department's review of the board's recommendatory
    
    decision. 35 ILCS 200/16-70, 16-130 (West 2014).) If, alternatively, the Department decides
    
    the property should be taxed, the landowner may file, with the Department, an application for a
    
    hearing. 35 ILCS 200/8-35(b) (West 2014).
    
    ¶ 65             When the Department makes a decision on the application for exemption
    
    forwarded by the board, "any party to the proceeding who feels aggrieved by the decision may
    
    file an application for hearing." Id. The application for hearing has to be filed with the
    
    Department within 60 days after the Department gave notice, by certified mail, of its initial
    
    decision, and the application has to state the mistakes allegedly made and the new evidence to be
    
    presented. Id.
    
    
    
    
                                                   - 14 -
    ¶ 66           Upon receiving an application for hearing, the Department will reconsider its
    
    exemption decision and will grant any party to the proceeding a hearing. Id. After the hearing,
    
    the Department will issue a notice of decision, again by certified mail. Id. The notice of
    
    decision will set forth the findings of fact and the bases of the Department's decision. Id.
    
    ¶ 67           Within 30 days after the Department mails its notice of decision, any party to the
    
    proceeding may file with the Department a request for rehearing. Id. The Department does not
    
    have to grant the request. If the Department allows a rehearing, it will issue a revised decision as
    
    a result of the rehearing. Id.
    
    ¶ 68           The action of the Department on an application for hearing will become final the
    
    later of (1) 30 days after the issuance of a notice of decision, if no request for rehearing is made,
    
    or (2) if a timely request for rehearing is made, upon the issuance of the denial of the request for
    
    rehearing or upon the issuance of a notice of final decision. Id.
    
    ¶ 69           No action for judicial review of an exemption decision by the Department (see 35
    
    ILCS 200/8-40 (West 2014)) is allowed unless the party commencing the action has filed with
    
    the Department an application for a hearing and the Department has acted upon the application.
    
    35 ILCS 200/8-35(b) (West 2014).
    
    ¶ 70           The judicial review will be in accordance with the Administrative Review Law
    
    (735 ILCS 5/3-101 to 3-113 (West 2014)). 35 ILCS 200/8-40 (West 2014).
    
    ¶ 71                     2. Maintaining an Exemption After It Is Granted
    
    ¶ 72           After an exemption has been granted, all property owners, except the United
    
    States and those with certain types of homestead exemptions, must file a certificate of status with
    
    the county assessor or the supervisor of assessments on or before January 31 of each year. 35
    
    ILCS 200/15-10 (West 2014). The certificate of status must state, under oath, whether there has
    
    
    
                                                    - 15 -
    been any change in the ownership or use of the property, and if there has been a change, the
    
    certificate must state the nature of the change. Id. The assessment officer has the discretion to
    
    terminate an exemption in the event of a failure to file this sworn certificate. Id.
    
    ¶ 73                             C. An Introduction to Section 15-86
    
    ¶ 74           In its declaratory judgment, which defendants have appealed, the trial court held
    
    that section 15-86 applied to this judicial proceeding pursuant to section 23-25(e) (35 ILCS
    
    200/23-25(e) (West 2014)). Consequently, this appeal requires an understanding of section 15-
    
    86. To that end, we provide this introduction.
    
    ¶ 75           Public Act 97-688 (Pub. Act 97-688, § 5-55 (eff. June 14, 2012)), added section
    
    15-86 (35 ILCS 200/15-86 (West 2014)) to the Code.
    
    ¶ 76           The preamble to section 15-86 says: "It is the intent of the General Assembly to
    
    establish a new category of ownership for charitable property tax exemption to be applied to not-
    
    for-profit hospitals and hospital affiliates in lieu of the existing ownership category of
    
    'institutions of public charity'." 35 ILCS 200/15-86(a)(5) (West 2014). "Institutions of public
    
    charity" is a phrase from a preexisting section of the Code, section 15-65(a) (35 ILCS 200/15-
    
    65(a) (West 2012)), which provides as follows:
    
                           "§ 15-65. Charitable purposes. All property of the
    
                   following is exempt when actually and exclusively used for
    
                   charitable or beneficent purposes, and not leased or otherwise used
    
                   with a view to profit:
    
                                     (a) Institutions of public charity." (Emphasis
    
                           added.)
    
    
    
    
                                                     - 16 -
    ¶ 77           Previously, under section 15-65(a), a hospital had to be owned by an
    
    "[i]nstitution[] of public charity" to qualify for a charitable exemption. Id. In section 15-86, the
    
    legislature intended to eliminate that requirement as to hospitals and to require, instead, that the
    
    owner of the hospital be a "not-for-profit corporation." 35 ILCS 200/15-86(b)(2), (b)(6), (c)
    
    (West 2014). (Article IX, section 6, of the Illinois Constitution (Ill. Const. 1970, art. IX, § 6)
    
    does not require, as a condition of a charitable exemption, that the property be owned by a
    
    charitable institution or by any particular type of owner. It requires merely that the property be
    
    "used exclusively for *** charitable purposes." Id. Charitable ownership is an additional,
    
    statutory prerequisite to the exemption, which the legislature imposed (35 ILCS 200/15-65(a)
    
    (West 2014))—as the legislature was free to do, given that, in the first place, it did not have to
    
    create any exemption at all. Provena Covenant Medical Center v. Department of Revenue, 
    384 Ill. App. 3d 734
    , 741 (2008).)
    
    ¶ 78           In addition to establishing this "new category of ownership for [the] charitable
    
    property tax exemption," the legislature intended, in section 15-86, to "establish quantifiable
    
    standards for the issuance of charitable exemptions for such property." 35 ILCS 200/15-86(a)(5)
    
    (West 2014). The legislature wanted to dispel the "considerable uncertainty surrounding the test
    
    for charitable property tax exemption, especially regarding the application of a quantitative or
    
    monetary threshold." 35 ILCS 200/15-86(a)(1) (West 2014). For a long time, it had been
    
    unclear what quantity of charity a hospital had to provide to qualify for the charitable exemption.
    
    In section 15-86, the legislature meant to clear up that ambiguity, right down to the dollar
    
    amount.
    
    ¶ 79           Nothing could be clearer than subsection (c) (35 ILCS 200/15-86(c) (West 2014)),
    
    which provides as follows: "A hospital applicant satisfies the conditions for an exemption under
    
    
    
                                                    - 17 -
    this Section with respect to the subject property, and shall be issued a charitable exemption for
    
    that property, if the value of services or activities listed in subsection (e) [(35 ILCS 200/15-86(e)
    
    (West 2014))] for the hospital year equals or exceeds the relevant hospital entity's estimated
    
    property tax liability, as determined under subsection (g) [(35 ILCS 200/15-86(g) (West 2014))],
    
    for the year for which exemption is sought."
    
    ¶ 80           Thus, subsection (c) contemplates the comparison of two numbers. The first
    
    number is the total dollar amount of "[s]ervices that address the health care needs of low-income
    
    or underserved individuals or relieve the burden of government with regard to health care
    
    services." 35 ILCS 200/15-86(e) (West 2014). The hospital had to provide these services
    
    during the "hospital year," defined as the hospital's fiscal year ending in the year for which the
    
    exemption is sought (35 ILCS 200/15-86(b)(9) (West 2014). The second number is the
    
    estimated property tax liability for the year for which an exemption is sought. 35 ILCS 200/15-
    
    86(c) (West 2014). If the first number equals or exceeds the second number, the hospital is to be
    
    given an exemption for the subject property. Id.
    
    ¶ 81           What "services and activities" count as charity, to be measured against the
    
    estimated property tax liability? Id. Subsection (e) (35 ILCS 200/15-86(e) (West 2014)) lists
    
    them under the heading of "Services that address the health care needs of low-income or
    
    underserved individuals or relieve the burden of government." Such services include "[c]harity
    
    care," defined as "[f]ree or discounted services provided pursuant to the relevant hospital entity's
    
    financial assistance policy, measured at cost, including discounts provided under the Hospital
    
    Uninsured Patient Discount Act [(210 ILCS 89/1 to 30 (West 2014))]." 35 ILCS 200/15-86(e)(1)
    
    (West 2014). Off-site subsidies also count, including financial support to unaffiliated hospitals
    
    (35 ILCS 200/15-86(e)(2) (West 2014)), financial or in-kind support to community clinics (id.),
    
    
    
                                                    - 18 -
    and direct subsidies to the state government or to local governments to pay for activities or
    
    programs related to health care for low-income or underserved individuals (35 ILCS 200/15-
    
    86(e)(3) (West 2014)).
    
    ¶ 82           The "hospital applicant" will list all these services and activities, along with their
    
    respective dollar values, on an application form provided by the Department, and the "hospital
    
    applicant" will attach all the necessary, supporting records to its application. 35 ILCS 200/15-
    
    86(d), (h) (West 2014). Because a "hospital applicant" is, by definition, "a hospital owner or
    
    hospital affiliate that files an application for a property tax exemption pursuant to Section 15-5
    
    [(35 ILCS 200/15-5 (West 2014))] and this Section" (35 ILCS 200/15-86(b)(6) (West 2014)), the
    
    "hospital applicant" will file its application "with the county board of review or board of appeals"
    
    (35 ILCS 200/15-5 (West 2014)). Then, like any other application for an exemption, the
    
    application will go through the process of administrative adjudication we already have described.
    
    ¶ 83                             D. Whether Section 15-86 Applies
                                 to an Action Pursuant to Section 23-25(e)
    
    ¶ 84           It is pretty clear that whenever a hospital owner seeks, "for the first time," an
    
    exemption pursuant to section 15-86 for a particular parcel of real estate, the legislature intends
    
    the hospital owner to go through the administrative process we have described. 35 ILCS 200/15-
    
    5 (West 2014). We know that because, under the terms of section 15-86, the hospital owner has
    
    to fill out an application, using a form provided by the Department, and the hospital owner has to
    
    file this application with the county board of review or the board of appeals, pursuant to section
    
    15-5. 35 ILCS 200/15-86(b)(6), (b)(8), (h) (West 2014).
    
    ¶ 85           So, the legislature envisions that, in the first instance, the board and then the
    
    Department will apply section 15-86 to the question of whether a given parcel is exempt from
    
    taxation. In a subsequent action for administrative review, the trial court may have occasion to
    
                                                   - 19 -
    scrutinize the Department's application of section 15-86, but the court will be deferential toward
    
    the Department's factual findings. See 735 ILCS 5/3-110 (West 2014) ("The findings and
    
    conclusions of the administrative agency on questions of fact shall be held to be prima facie true
    
    and correct.").
    
    ¶ 86              Because section 15-86, by its terms, contemplates an administrative determination
    
    of the application for exemption, we have to ask whether it makes sense to say, as the trial court
    
    did, that section 15-86 applies to this judicial proceeding pursuant to section 23-25(e) (35 ILCS
    
    200/23-25(e) (West 2014)). (We do not even reach the question of section 15-86's
    
    constitutionality unless we first find that section 15-86 is applicable to this judicial proceeding.)
    
    ¶ 87              How can this pervasively administrative statute, section 15-86, apply to a judicial
    
    proceeding under section 23-25(e)? After all, section 23-25(e) is supposed to be an alternative to
    
    administrative procedures. It reads as follows:
    
                              " (e) The limitation in this Section shall not apply to court
    
                      proceedings to establish an exemption for any specific assessment
    
                      year, provided that the plaintiff or its predecessor in interest in the
    
                      property has established an exemption for any subsequent or prior
    
                      assessment year on grounds comparable to those alleged in the
    
                      court proceedings. For purposes of this subsection, the exemption
    
                      for a subsequent or prior year must have been determined under
    
                      Section 8-35 [(35 ILCS 200/8-35 (West 2014))] or a prior similar
    
                      law by the Department or a predecessor agency, or under Section
    
                      8-40 [(35 ILCS 200/8-40 (West 2014))]. Court proceedings
    
                      permitted by this subsection may be initiated while proceedings for
    
    
    
                                                       - 20 -
                   the subsequent or prior year under Section 16-70 [(35 ILCS
    
                   200/16-70 (West 2014))], 16-130 [(35 ILCS 200/16-130 (West
    
                   2014))], 8-35, or 8-40 are still pending, but judgment shall not be
    
                   entered until the proceedings under Section 8-35 or 8-40 have
    
                   terminated." Id.
    
    ¶ 88           The phrase at the beginning of the quoted passage—"[t]he limitation in this
    
    Section"—means the requirement of obtaining a final decision by the Department as to the
    
    assessment year in question before filing an action in the circuit court. See 35 ILCS 200/23-
    
    25(a) (referring to section 8-40 (35 ILCS 200/8-40 (West 2014))). The plaintiff may skip the
    
    normally obligatory process of litigating to finality before the Department, and may go directly
    
    to the circuit court, if, "for any subsequent or prior assessment year"—that is, any assessment
    
    year that came after or before the assessment year in question—the plaintiff obtained an
    
    exemption of the parcel "on grounds comparable to those alleged in the court proceedings." 35
    
    ILCS 200/23-25(e) (West 2014).
    
    ¶ 89           "[T]he exemption for a subsequent or prior year must have been determined under
    
    Section 8-35 [(35 ILCS 200/8-35 (West 2014))] or a prior similar law by the Department or a
    
    predecessor agency, or under Section 8-40 [(35 ILCS 200/8-40 (West 2014))]." Id. In other
    
    words, the Department must have issued a final administrative decision granting an exemption
    
    for a subsequent or prior year (35 ILCS 200/8-35(b) (West 2014))—or, alternatively, in an action
    
    for administrative review, a circuit court must have reversed a final administrative decision in
    
    which the Department denied an exemption for a subsequent year or prior year (35 ILCS 200/8-
    
    40 (West 2014)).
    
    
    
    
                                                   - 21 -
    ¶ 90           Thus, as to the subject property, section 23-25(e) presupposes a favorable
    
    decision, under sections 8-35 or 8-40, for a subsequent or prior assessment year. But precisely
    
    what function does this favorable decision serve in a proceeding pursuant to section 23-25(e)?
    
    What did the legislature intend in this respect, as evidenced by the language of that statute? See
    
    Paris v. Feder, 
    179 Ill. 2d 173
    , 177 (1997).
    
    ¶ 91           Plaintiff seems to take the view that the favorable decision serves merely as an
    
    admission ticket into the circuit court and that once the taxpayer is admitted, the ticket is
    
    forgotten and the court applies section 15-86 in a de novo determination of whether the parcel
    
    deserves an exemption for the assessment year in question. In this view, the circuit court would
    
    function as a super agency. Cf. 35 ILCS 200/16-70 (West 2014) ("The Department shall
    
    determine whether the property is legally liable to taxation.").
    
    ¶ 92           We can think of a different interpretation of section 23-25(e), an interpretation
    
    that would have the advantage of not transforming the circuit court into a clone of the
    
    Department. The legislature could have intended the favorable decision to serve not merely as
    
    an admission ticket into the circuit court, but as an object of comparison in the trial. The trial
    
    would compare two sets of facts: the facts existing during the assessment year in question and
    
    the facts on which the Department or the circuit court relied when finding the parcel to be
    
    exempt for a subsequent or prior year. That would not be the same thing as taking over the
    
    Department's job. There is a significant difference between, on the one hand, trying to do the
    
    Department's job by processing an application for an exemption and, on the other hand, looking
    
    at the facts in an application that previously was granted and asking the Department, "Why did
    
    you deny an exemption this time, considering that the facts proven by the plaintiff appear to be
    
    substantially the same as the facts set forth in this application for a subsequent or prior, which
    
    
    
                                                    - 22 -
    was granted? Or, in your view, are the facts different?" Instead of becoming a redundant
    
    agency, the court would be on the lookout for arbitrariness in the form of an inconsistent
    
    treatment of substantially the same facts.
    
    ¶ 93            In our de novo review (Paris, 179 Ill. 2d at 177-78), we favor this interpretation of
    
    section 23-25(e) that envisions a comparison of facts, not only because this interpretation
    
    preserves the relevance of the Department (which, after all, is the expert, with lots of experience)
    
    but also because it lines up with the statutory phrase "grounds comparable to those alleged in the
    
    court proceedings": "The limitation in this Section shall not apply to court proceedings to
    
    establish an exemption for any specific assessment year, provided that the plaintiff or its
    
    predecessor in interest in the property has established an exemption for any subsequent or prior
    
    assessment year on grounds comparable to those alleged in the court proceedings." (Emphasis
    
    added.) 35 ILCS 200/23-25(e) (West 2014). When adding section 23-25(e) to the Code in 1998
    
    (Pub. Act 90-679, § 5 (eff. July 31, 1998)), the legislature presumably knew that Illinois was a
    
    fact-pleading jurisdiction (Knox College v. Celotex Corp., 
    88 Ill. 2d 407
    , 426-27 (1981); Richco
    
    Plastic Co. v. IMS Co., 
    288 Ill. App. 3d 782
    , 784 (1997)) and that "grounds" "alleged in the court
    
    proceedings" necessarily would be factual grounds. See Nelson v. Kendall County, 2014 IL
    
    116303, ¶ 27.
    
    ¶ 94            Here, then, is the procedure the legislature must have contemplated. In an action
    
    pursuant to section 23-25(e), the plaintiff would allege and prove that, as to the subject property,
    
    a certain set of facts existed during the assessment year in question and that substantially the
    
    same facts caused that property to be exempt for a subsequent or prior assessment year. By
    
    hearing this evidence, the circuit court would not make a de novo determination so much as
    
    compare two sets of facts, to see if the Department is being inconsistent or arbitrary.
    
    
    
                                                   - 23 -
    ¶ 95             Unless the two sets of facts are materially different or unless the Department
    
    convinces the circuit court that the exemption for the subsequent or prior assessment year
    
    actually was unlawful (see Brown's Furniture, Inc. v. Wagner, 
    171 Ill. 2d 410
    , 432 (1996)
    
    ("[T]his court has refused to estop the State from reexamining a taxpayer's liability even when
    
    returns for the relevant tax period have been filed and approved."); Austin Liquor Mart, Inc. v.
    
    Department of Revenue, 
    51 Ill. 2d 31
    , 34 (1972) ("It is firmly established that where the public
    
    revenues are involved, public policy ordinarily forbids the application of estoppel to the State."),
    
    logic would likewise require an exemption for the assessment year in question.
    
    ¶ 96             Now that we understand how section 23-25(e) works, we return to our question:
    
    Did the legislature intend that section 15-86 would apply to a proceeding pursuant to section 23-
    
    25(e)? The legislature must have intended section 15-86 to apply at least indirectly. If section
    
    15-86 was the authority for exempting the property from taxation for a subsequent or prior
    
    assessment year, section 15-86 would indirectly apply to the proceeding under section 23-25(e),
    
    through a comparison of facts: if under those facts the property was entitled to an exemption
    
    pursuant to section 15-86, it follows that under these comparable facts the property likewise is
    
    entitled to an exemption pursuant to section 15-86. Ultimately, the authority would be the same:
    
    section 15-86.
    
    ¶ 97             But what if the assessment year in question and a subsequent assessment year to
    
    which a comparison is being made are on different sides of the effective date of section 15-86:
    
    June 14, 2012? See Pub. Act 97-688, § 5-55 (eff. June 14, 2012) (adding section 15-86 to the
    
    Code). That is a dilemma the present case poses. Paragraph 4 of the fourth amended complaint
    
    alleges: "Before tax assessment year 2004, and then again for tax assessment year 2012,
    
    [plaintiff] obtained a determination from the [Department] or its predecessor agency under
    
    
    
                                                    - 24 -
    Section 8-35 or a prior law, or from a court under Section 8-40, that it was entitled to a full or
    
    partial exemption with respect to each of the Four Parcels."
    
    ¶ 98           It would seem, then, that, in this proceeding pursuant to section 23-25(e), plaintiff
    
    intends to compare the assessment years 2004 through 2011 not only to a prior assessment year,
    
    that is, a year prior to 2004, but also to a subsequent assessment year, 2012.
    
    ¶ 99           Assessment year 2012 was subject to section 15-86. The Department applied
    
    section 15-86 when determining the four parcels to be exempt for 2012, as Laurence J. Fallon,
    
    plaintiff's senior vice president of legal affairs, stated in his affidavit, dated July 15, 2013. He
    
    stated in paragraph 24:
    
                           "24. Following the passage of P.A. 97-688 in 2012,
    
                   [plaintiff] filed Section 15-5 applications seeking exemptions for
    
                   the Four Parcels and other *** properties [belonging to plaintiff],
    
                   pursuant to the hospital property tax exemption contained in
    
                   Section 15-86, for the 2012 tax year. A true and correct copy of
    
                   the Certificates of Non-homestead exemption for the Four Parcels
    
                   issued to [plaintiff] by the [Department] for the tax year 2012 is
    
                   attached as Group Exhibit H."
    
    ¶ 100          So, after the passage of Public Act 97-688, plaintiff received an exemption for the
    
    assessment year 2012, and the exemption was pursuant to section 15-86. Now, in this
    
    proceeding pursuant to section 23-25(e), plaintiff wants to compare the assessment years 2004 to
    
    2011, during which section 15-86 did not yet exist, to the assessment year 2012, when section
    
    15-86 did exist. Can plaintiff do that? Is the anachronism permissible?
    
    
    
    
                                                     - 25 -
    ¶ 101          It depends on whether the legislature intended section 15-86 to apply
    
    retroactively. It also depends on whether section 15-86 is constitutional—but right now we will
    
    take up the question of retroactivity, in our continuing search for a nonconstitutional disposition
    
    of the township defendants' appeal.
    
    ¶ 102                          E. The Retroactivity of Section 15-86
    
    ¶ 103          At the outset, we should be clear what we mean by the retroactive application of
    
    section 15-86. A retroactive act (or statute) "operat[es] on transactions that have occurred or
    
    rights and obligations that existed before passage of the act." 2 Norman Singer & J.D. Shambie
    
    Singer, Statutes and Statutory Construction § 41:1, at 383 (7th ed. 2009). Therefore, section 15-
    
    86 would apply retroactively if it determined the exempt or nonexempt status of property on the
    
    basis of uses made of the property before June 14, 2012 (the effective date of section 15-86), or
    
    on the basis of other facts existing before that date.
    
    ¶ 104          Did the legislature intend section 15-86 to apply retroactively? In section 4 of the
    
    Statute on Statues (5 ILCS 70/4 (West 2014)), the legislature has clearly manifested its intent
    
    that statutory amendments which are substantive in nature, in contrast to amendments affecting
    
    procedure, will apply only prospectively, not retroactively. Caveney v. Bower, 
    207 Ill. 2d 82
    , 92
    
    (2003). By adding section 15-86 to the Code, Public Act 97-688 made a change that was
    
    substantive in nature: section 15-86(c) (35 ILCS 200/15-86(c) (West 2014)) specifies the
    
    conditions for a charitable exemption, specifically, "the value of services or activities" the
    
    hospital must provide during the "hospital year." Insomuch as section 15-86 prescribes
    
    procedures, they merely implement that substantive change. Because the addition of section 15-
    
    86 to the Property Tax Code was a change that was substantive in nature, section 4 of the Statute
    
    on Statutes requires that the change be given only prospective effect—unless the legislature has
    
    
    
                                                    - 26 -
    clearly indicated otherwise in the amendatory act, Public Act 97-688. See Caveney, 207 Ill. 2d at
    
    94-95.
    
    ¶ 105          Section 90 of Public Act 97-688 (codified as 35 ILCS 128/90 (West 2014)),
    
    entitled "Applicability," lists the administrative "decisions" and the "applications for property tax
    
    exemption" to which "[t]he changes made by this amendatory Act *** shall apply." Pub. Act 97-
    
    688, art. 99, § 90 (eff. June 14, 2012). By so doing, section 90 indicates the temporal reach of
    
    the changes. We will quote only the portions of section 90 that pertain to property tax
    
    exemptions:
    
                           "Section 90. Applicability. The changes made by this
    
                   amendatory Act of the 97th General Assembly to the Property Tax
    
                   Code, the Illinois Income Tax Act, the Use Tax Act, the Service
    
                   Occupation Tax Act, and the Retailers' Occupation Tax Act shall
    
                   apply to: (1) all decisions by the Department on or after the
    
                   effective date of this amendatory Act of the 97th General
    
                   Assembly regarding entitlement or continued entitlement by
    
                   hospitals, hospital owners, hospital affiliates, or hospital systems to
    
                   charitable property tax exemptions; (2) all applications for property
    
                   tax exemption filed by hospitals, hospital owners, hospital
    
                   affiliates, or hospital systems on or after the effective date of this
    
                   amendatory Act of the 97th General Assembly; (3) all applications
    
                   for property tax exemption filed by hospitals, hospital owners,
    
                   hospital affiliates, or hospital systems that have either not been
    
                   decided by the Department before the effective date of this
    
    
    
                                                    - 27 -
                   amendatory Act of the 97th General Assembly, or for which any
    
                   such Department decisions are not final and non-appealable as of
    
                   that date ***." Pub. Act 97-688, art. 99, §§ 90(1), (2), (3) (eff.
    
                   June 14, 2012) (codified as 35 ILCS 128/90(1), (2), (3) (West
    
                   2014)).
    
    ¶ 106          It is clear from section 90 of Public Act 97-688 that the legislature intended
    
    section 15-86 to apply retroactively. All three subsections of the quoted passage would entail the
    
    retroactive application of section 15-86.
    
    ¶ 107          Let us begin with subsection (1) (Pub. Act 97-688, art. 99, § 90(1) (eff. June 14,
    
    2012) (codified as 35 ILCS 128/90(1) (West 2014))). If, as subsection (1) says, Public Act 97-
    
    688 applies to "all" decisions the Department makes on charitable exemptions on or after the
    
    effective date of the act, June 14, 2012, it follows that section 5-55 of Public Act 97-688,
    
    codified as section 15-86 of the Code, applies to all those decisions, including decisions pending
    
    on June 14, 2012—decisions that necessarily scrutinize the uses made of property before that
    
    date. Id.
    
    ¶ 108          Now let us look at subsection (2) (Pub. Act 97-688, art. 99, § 90(2) (eff. June 14,
    
    2012) (codified as 35 ILCS 128/90(2) (West 2014))). Public Act 97-688, and therefore section
    
    15-86, will apply to "all applications for property tax exemption filed *** on or after the
    
    effective date of this amendatory Act." Id. If a hospital files an application on June 14, 2012,
    
    the application necessarily will be based on uses made of the property before that date.
    
    ¶ 109          Finally, let us look at subsection (3) (Pub. Act 97-688, art. 99, § 90(3) (eff. June
    
    14, 2012) (codified as 35 ILCS 128/90(3) (West 2014))), with its unfortunate double negative.
    
    Public Act 97-688, including section 15-86 of the Code, shall apply to "all applications for
    
    
    
                                                   - 28 -
    property tax exemption filed by hospitals *** that have either not been decided by the
    
    Department before the effective date of this amendatory Act ***, or for which any such
    
    Department decisions are not final and non-appealable as of that date" (id.)—by which the
    
    legislature apparently means "not final and appealable" (the "not" modifying both "final" and
    
    "appealable"). Thus, if, on June 14, 2012, the Department made a nonfinal decision on an
    
    application for a property tax exemption—an application that necessarily would concern uses of
    
    the property earlier than June 14, 2012—section 15-86 will apply to that application.
    
    ¶ 110          We conclude, then, that the legislature "plainly" intended section 15-86 to apply
    
    retroactively. Caveney, 207 Ill. 2d at 94-95.
    
    ¶ 111          The county defendants, perhaps anticipating that conclusion, argue it is untenable
    
    because the fourth amended complaint is not, in the words of sections 90(2) and (3) (Pub. Act
    
    97-688, art. 99, § 90 (eff. June 14, 2012)), an "application[] for property tax exemption" (cf. 35
    
    ILCS 200/15-5 (West 2014) ("Any person wishing to claim an exemption for the first time ***
    
    shall file an application with the county board of review ***.")), and a decision by the circuit
    
    court in a proceeding pursuant to section 23-25(e) is not, in the words of section 90(1) (Pub. Act
    
    97-688, art. 99, § 90 (eff. June 14, 2012)), a "decision[] by the Department."
    
    ¶ 112          True enough, but plaintiff's action is pursuant to section 23-25(e), not section 90,
    
    and section 90 does not say that the changes made by Public Act 97-688 apply only to the items
    
    listed in section 90. Again, the question is not whether this action fits within section 90 but,
    
    rather, whether the legislature intended section 15-86 to apply retroactively. Section 90 clearly
    
    evinces such an intent. See Caveney, 207 Ill. 2d at 94-95.
    
    ¶ 113          Understandably, the county defendants are concerned about open-ended
    
    retroactivity. They point out that "[i]f a taxpayer can raise an exemption claim long after the
    
    
    
                                                    - 29 -
    [equalized assessed valuation] for a given year has been certified to the Department, there is no
    
    way for taxing districts to recoup the lost taxes: there is no statutory authority for the assessor to
    
    go back to prior years and collect additional taxes," to make up for the exemption that a court has
    
    retroactively granted. But we do not know how else to interpret the phrase "any subsequent ***
    
    assessment year," in section 23-25(e). (Emphasis added.) 35 ILCS 200/23-25(e) (West 2014).
    
    "[A]ny subsequent *** assessment year" can serve as the object of comparison, meaning that, in
    
    a proceeding pursuant to section 23-25(e), the plaintiff can obtain an exemption for an
    
    assessment year on the basis of an exemption granted anytime afterward, if the facts are
    
    comparable. (Emphasis added.) Id. If such open-ended retroactivity is unwise or impractical as
    
    public policy, the remedy is with the legislature, not with us. See People ex rel. Brenza v.
    
    Gebbie, 
    5 Ill. 2d 565
    , 583 (1955).
    
    ¶ 114                            F. Is Section 15-86 Constitutional?
    
    ¶ 115                 1. The Unavoidability of This Constitutional Question
    
    ¶ 116          The township defendants argue that section 15-86 is facially unconstitutional in
    
    that it creates an exemption unauthorized by article IX, section 6, of the Illinois Constitution (Ill.
    
    Const. 1970, art. IX, § 6). See Chicago Bar Ass'n v. Department of Revenue, 
    163 Ill. 2d 290
    , 297
    
    (1994). Plaintiff agrees that, if indeed section 15-86 is facially unconstitutional, as the township
    
    defendants contend, the trial court should have denied rather than granted its motion for a
    
    summary judgment on count II. (Again, count II sought a declaratory judgment that section 15-
    
    86 applied to counts III to XXXIV, which sought exemptions for the four parcels for the
    
    assessment years 2004 to 2011.) An unconstitutional statute is unenforceable from the moment
    
    of its enactment (People v. Blair, 2013 IL 114122, ¶ 30), and if section 15-86 were
    
    
    
    
                                                    - 30 -
    unconstitutional and hence unenforceable, it could not apply, indirectly or otherwise, to the
    
    question of whether the four parcels should be exempt from taxation.
    
    ¶ 117          We do not see how we can avoid assessing the constitutionality of section 15-86.
    
    See In re Haley D., 2011 IL 110886, ¶ 54. We cannot say that section 15-86 is inapplicable to
    
    counts III to XXXIV for any nonconstitutional reason (we already have explored that possibility
    
    in our discussion thus far). Standing squarely before us, blocking the hallway, is the question of
    
    whether section 15-86 violates article IX, section 6, of the Illinois Constitution. So far as we can
    
    see, the question cannot be sidestepped.
    
    ¶ 118                       2. An Introduction to Article IX, Section 6
    
    ¶ 119          Article IX, section 6, of the Illinois Constitution of 1970 provides as follows:
    
                           "The General Assembly by law may exempt from taxation
    
                   only the property of the State, units of local government and school
    
                   districts and property used exclusively for agricultural and
    
                   horticultural societies, and for school, religious, cemetery and
    
                   charitable purposes. The General Assembly by law may grant
    
                   homestead exemptions or rent credits." Ill. Const. 1970, art. IX,
    
                   § 6.
    
    ¶ 120          In this appeal, we are concerned with the first sentence of article IX, section 6.
    
    We make three observations about that sentence.
    
    ¶ 121          First, it is not self-executing. If there is to be any exemption from property taxes,
    
    the General Assembly must so provide by statutory law—consistently, though, with article IX,
    
    section 6. City of Chicago v. Illinois Department of Revenue, 
    147 Ill. 2d 484
    , 492 (1992). If the
    
    General Assembly chooses to exempt property, it can make the exemption more restrictive than
    
    
    
                                                   - 31 -
    the terms and conditions of article IX, section 6, such as by requiring, for a charitable exemption,
    
    that the property be owned by an "[i]nstitution[] of public charity" (35 ILCS 200/15-65(a) (West
    
    2014)) (article IX, section 6, by contrast, says nothing about the ownership of the property used
    
    exclusively for charitable purposes), but the General Assembly cannot provide an exemption that
    
    exceeds the terms and conditions of article IX, section 6. Provena, 384 Ill. App. 3d at 741. In
    
    other words, the General Assembly may not "broaden or add to the exemptions that section 6 of
    
    article IX allows" (id.)—a limitation made clear by the adjective "only" in the constitutional text
    
    (Ill. Const. 1970, art. IX, § 6).
    
    ¶ 122           Second, the only owners of real estate that can be exempt from property taxes on
    
    the basis of their identity, regardless of how they use the real estate, are "the State, units of local
    
    government[,] and school districts." Id. All other exemptions—including exemptions for
    
    hospitals—must be based on the "exclusive[]" "use[]" of the real estate for any of the listed
    
    purposes, namely, "agricultural and horticultural societies, and for school, religious, cemetery[,]
    
    and charitable purposes." (Emphasis added.) Id.
    
    ¶ 123           Third, for the past 106 years, the supreme court has interpreted "exclusive" use as
    
    "primary" use. Chicago Bar Ass'n v. Department of Revenue, 
    163 Ill. 2d 290
    , 300 (1994);
    
    Children's Development Center, Inc. v. Olson, 
    52 Ill. 2d 332
    , 336 (1972); Illinois Institute of
    
    Technology v. Skinner, 
    49 Ill. 2d 59
    , 65-66 (1971); MacMurray College v. Wright, 
    38 Ill. 2d 272
    ,
    
    278 (1967); City of Mattoon v. Graham, 
    386 Ill. 180
    , 185 (1944); People ex rel. Fix v. Trustees
    
    of Northwestern College, 
    322 Ill. 120
    , 125 (1926); First Congregational Church of De Kalb v.
    
    Board of Review of De Kalb County, 
    254 Ill. 220
    , 224 (1912); People ex rel. Thompson v. First
    
    Congregational Church of Oak Park, 
    232 Ill. 158
    , 164 (1908). (Article IX, section 6, of our
    
    present constitution is nearly identical to article IX, section 3, of our previous constitution (Ill.
    
    
    
                                                     - 32 -
    Const. 1870, art. IX, § 3), which provided: "The property of the state, counties, and other
    
    municipal corporations, both real and personal, and such other property as may be used
    
    exclusively for agricultural and horticultural societies, for school, religious, cemetery and
    
    charitable purposes, may be exempted from taxation; but such exemption shall be only by
    
    general law." (Emphasis added.) Because of this close similarity in language, cases discussing
    
    property tax exemptions when the 1870 constitution was in force are equally relevant under the
    
    1970 constitution. Eden Retirement Center, Inc. v. Department of Revenue, 
    213 Ill. 2d 273
    , 286
    
    (2004).)
    
    ¶ 124           It could strike an ordinary reader as counterintuitive that "exclusively," in article
    
    IX, section 6, means "primarily." After all, "[t]he meaning of a constitutional provision depends
    
    on the common understanding of the citizens who, by ratifying the constitution, gave it life.
    
    [Citations.] This understanding is best determined by referring to the common meaning of the
    
    words used. [Citations.]" Committee for Educational Rights v. Edgar, 
    174 Ill. 2d 1
    , 13 (1996).
    
    "Exclusively" is commonly understood to mean "solely," whereas "primarily" is commonly
    
    understood to mean "mostly." The meanings of these two words might seem, strictly speaking,
    
    incompatible.
    
    ¶ 125           Taking a hard line, though, on the meaning of "exclusively" would cause any
    
    nonexempt use of the property, however trivial and fleeting, to disqualify the property from an
    
    exemption—because "exclusively," if one wanted to be strict and pedantic, means 100%, not
    
    99.99%. To the supreme court, it seemed implausible that the ratifiers intended such a
    
    draconian, unforgiving standard. It seemed implausible that they intended a church, for example,
    
    to lose its exemption, as property used exclusively for religious purposes, merely because the
    
    elders held a business meeting there or because a sexton lived in the furnace room. First
    
    
    
                                                    - 33 -
    Congregational Church of Oak Park, 232 Ill. at 164. (Since First Congregational Church of
    
    Oak Park, the supreme court has taken a more expansive view of what constitutes use for an
    
    exempt purpose. McKenzie v. Johnson, 
    98 Ill. 2d 87
    , 98-99 (1983).) If "exclusively" meant
    
    "solely," in the absolute sense of 100%, a church would have to forfeit its exemption if one night
    
    it hosted a chamber music concert. Likewise, a hospital that provided nothing but charity care
    
    would have to forfeit its exemption if it allowed a vending machine on the premises or if it
    
    allowed a nurse, during lunch break, to sell Little League popcorn to fellow employees. So, in a
    
    spirit of reasonableness, the supreme court somewhat softened the standard to "primary" use.
    
    ¶ 126          This standard of "primary" use might seem to suggest that if a building were used
    
    51% of the time for religious purposes and the remaining 49% of the time as a nightclub, it
    
    would qualify for an exemption. But that apparently is not what the supreme court means. The
    
    nonexempt use has to be "merely incidental" (Skinner, 49 Ill. 2d at 66), that is, it cannot be a
    
    "major" use. The New Oxford American Dictionary 859 (2001) (definition of "incidental"); see
    
    Streeterville Corp. v. Department of Revenue, 
    186 Ill. 2d 534
    , 536-37 (1999) ("In the instant
    
    case, Streeterville concedes that the 26% nonexempt use of the parking facility cannot qualify as
    
    merely incidental."). Any nonexempt use has to be trivial or de minimis; a reasonable reader
    
    would have to give at least that much rigor to the constitutional phrase "used exclusively for
    
    [exempt] purposes." (Emphasis added.) Ill. Const. 1970, art. IX, § 6.
    
    ¶ 127                       3. The Township Defendants' Argument That
                             Section 15-86 Is Facially Unconstitutional in That
                          It Bestows a Charitable Exemption Without Requiring
                               an Exclusively Charitable Use of the Property
    
    ¶ 128          The township defendants argue that section 15-86 is unconstitutional in that it
    
    "authorizes property tax exemption for hospitals without regard to whether a hospital meets the
    
    
    
    
                                                   - 34 -
    requirement for a charitable exemption under the Illinois Constitution of 1970, article IX, section
    
    6." Id.
    
    ¶ 129          For two reasons, plaintiff disagrees with the township defendant's argument.
    
    ¶ 130          First, plaintiff argues that section 15-86 should be construed to condition the
    
    exemption on satisfying the constitutional requirement of exclusive charitable use. See id.
    
    ("property used exclusively for *** charitable purposes").
    
    ¶ 131          Second, plaintiff argues that, regardless of whether section 15-86 is construed to
    
    require exclusive charitable use within the meaning of article IX, section 6, the township
    
    defendants are unable to prove that there is no set of circumstances in which an exemption
    
    pursuant to section 15-86 would be constitutional.
    
    ¶ 132          By addressing these two counterarguments by plaintiff, we effectively would
    
    address the township defendants' argument. So, let us consider plaintiff's counterarguments,
    
    taking them one at a time.
    
    ¶ 133             a. Construing Section 15-86 So as To Make It Constitutional,
                   Insomuch as Such a Construction Would Be Reasonably Defensible
    
    ¶ 134          In our de novo review of the constitutionality of section 15-86 (see People v.
    
    Boeckmann, 
    238 Ill. 2d 1
    , 7 (2010)), we begin with the presumption that the statute is
    
    constitutional, a presumption the township defendants have the burden of clearly rebutting (see
    
    id. at 6). If the text of section 15-86 is susceptible to two interpretations, both reasonable, one of
    
    which would make section 15-86 constitutional and the other of which would make it
    
    unconstitutional, we should choose the interpretation that would make it constitutional (thus the
    
    township defendants' burden of clearly showing the unconstitutionality). See id.
    
    ¶ 135          This rule of construction is not a license to rewrite section 15-86; our
    
    interpretation should have an objective basis in the statutory text. See People v. One 1998 GMC,
    
                                                    - 35 -
    2011 IL 110236, ¶ 13. We should "construe [the] statute in a manner upholding its
    
    constitutionality if reasonably possible." (Emphasis added.) Boeckmann, 238 Ill. 2d at 6.
    
    ¶ 136          According to plaintiff, "[s]ection 15-86 should be interpreted, consistent with
    
    prevailing case law, to provide a description or illustration of properties owned by not-for-profit
    
    hospital-related entities that may be entitled to exemption, but issuance of an exemption remains
    
    subject to compliance with the charitable use requirement." The "prevailing case law" that
    
    plaintiff has in mind is Chicago Bar Ass'n and McKenzie. Unlike section 15-86, however, the
    
    statutes at issue in those cases actually stated the constitutional requirement of exclusive use and
    
    then listed examples of properties that, when so used, would be exempt. See Chicago Bar Ass'n,
    
    163 Ill. 2d at 299-300; McKenzie, 98 Ill. 2d at 96.
    
    ¶ 137          The statute at issue in Chicago Bar Ass'n was section 19.1 of the Revenue Act of
    
    1939 (Ill. Rev. Stat. 1991, ch. 120, ¶ 500.1). Chicago Bar Ass'n, 163 Ill. 2d at 293-94. It
    
    exempted "any other real property used by such schools exclusively for school purposes, ***
    
    including, but not limited to" several examples, among which was "property *** on or adjacent
    
    to *** the grounds of a school which property is used by [a] *** professional society *** which
    
    serves the advancement of learning." Ill. Rev. Stat. 1991, ch. 120, ¶ 500.1. Evidently confused
    
    by the convolutions of section 19.1, which resembled a wadded-up fishing line, the circuit court
    
    in Chicago Bar Ass'n interpreted the "adjacent" property of the "professional society" as
    
    something in addition to and other than the "real property used by such schools exclusively for
    
    school purposes" (id.) Chicago Bar Ass'n, 163 Ill. 2d at 298. But the supreme court concluded
    
    that the text of section 19.1 was reasonably susceptible to an alternative interpretation, which
    
    was the preferable interpretation because it made section 19.1 constitutional. Under this
    
    alternative interpretation, the "adjacent" property was an example or illustration of "real property
    
    
    
                                                   - 36 -
    used by such schools exclusively for school purposes" (Ill. Rev. Stat. 1991, ch. 120, ¶ 500.1).
    
    Chicago Bar Ass'n, 163 Ill. 2d at 299-300.
    
    ¶ 138          Similarly, in McKenzie, the statute established an exemption for " 'property used
    
    exclusively for religious purposes,' " and then, in an " 'including' " clause, it listed examples of
    
    " 'such property.' " McKenzie, 98 Ill. 2d at 94 (quoting Ill. Rev. Stat. 1981, ch. 120, ¶ 500.2).
    
    The statute was section 19.2 of the Revenue Act of 1939, and to quote it more fully, it exempted
    
    from taxation " '[a]ll property used exclusively for religious purposes *** and not leased or
    
    otherwise used with a view to profit, including all such property owned by churches or religious
    
    institutions or denominations and used in conjunction therewith as parsonages.' " Id. (quoting Ill.
    
    Rev. Stat. 1981, ch. 120, ¶ 500.2). This statutory exemption of " 'parsonages' " was
    
    constitutional because (1) " 'parsonages' " were linked to the explicitly stated exempt use by an
    
    "including" clause and (2) " 'parsonages' " were " 'such property,' " that is, " 'property used
    
    exclusively for religious purposes.' " Id. (quoting Ill. Rev. Stat. 1981, ch. 120, ¶ 500.2).
    
    ¶ 139          Because section 15-86, by contrast, lacks any mention of exclusive use for an
    
    exempt purpose, we do not see how it is comparable to the statutes in Chicago Bar Ass'n and
    
    McKenzie. The statute at issue in Chicago Bar Ass'n, section 19.1 of the Revenue Act of 1939
    
    (Ill. Rev. Stat. 1991, ch. 120, ¶ 500.1), exempted "any other real property used by such schools
    
    exclusively for school purposes, *** including, but not limited to *** property *** on or
    
    adjacent to *** the grounds of a school which property is used by [a] *** professional society
    
    *** which serves the advancement of learning." (Emphasis added.) Cf. Ill. Const. 1970, art. IX,
    
    § 6 ("property used exclusively for *** school *** purposes"). In like manner, the statute at
    
    issue in McKenzie, section 19.2 of the Revenue Act of 1939 (Ill. Rev. Stat. 1981, ch. 120,
    
    ¶ 500.2), exempted " 'property used exclusively for religious purposes ***, including all such
    
    
    
                                                    - 37 -
    property owned by churches *** and used in conjunction therewith as parsonages.' " McKenzie,
    
    98 Ill. 2d at 94 (quoting Ill. Rev. Stat. 1981, ch. 120, ¶ 500.2). Cf. Ill. Const. 1970, art. IX, § 6
    
    ("property *** used exclusively for *** religious *** purposes").
    
    ¶ 140          Section 15-86 is quite different. It omits the constitutional standard, and we
    
    should not effectively rewrite the statute so as to express what simply is not there. See One
    
    1998 GMC, 2011 IL 110236, ¶ 13. Nowhere does section 15-86 say, as a condition of the
    
    charitable exemption, that the property must be "used exclusively for *** charitable purposes."
    
    Ill. Const. 1970, art. IX, § 6. Instead, section 15-86 bestows a charitable exemption if, during the
    
    hospital entity's fiscal year ending in the year for which it seeks an exemption, the value of the
    
    "[s]ervices" in subsection (e) (35 ILCS 200/15-86(e) (West 2014)) that the hospital entity
    
    provided equals or exceeds the hospital entity's estimated property tax liability for the year for
    
    which it seeks an exemption. 35 ILCS 200/15-86(c) (West 2014).
    
    ¶ 141          This statutory standard for a charitable exemption conflicts with article IX,
    
    section 6, of our constitution. Rather than require the hospital entity to use the subject property
    
    exclusively for charitable purposes (nowhere in section 15-86 is the phrase "used exclusively for
    
    charitable purposes" to be found), section 15-86 merely requires the hospital entity to, in a
    
    manner of speaking, pay for its property tax exemption with certain services of equivalent value.
    
    Id. The legislature thereby added a new exemption to those authorized by article IX, section 6: a
    
    charitable exemption for hospital entities that, regardless of whether they use the property
    
    exclusively for charitable purposes, provide just enough "[s]ervices that address the health care
    
    needs of low-income or underserved individuals" to economically counterbalance the property
    
    tax exemption (35 ILCS 200/15-86(e) (West 2014)). See Provena, 384 Ill. App. 3d at 741
    
    
    
    
                                                    - 38 -
    ("[T]he General Assembly may not broaden or add to the exemptions that section 6 of article IX
    
    allows.").
    
    ¶ 142           Not only does section 15-86 settle for something less than exclusive use of the
    
    property for charitable purposes; it does not require any charitable use of the property at all.
    
    Under section 15-86, a hospital entity can obtain a charitable exemption simply by paying
    
    subsidies to community clinics, for example (35 ILCS 200/15-86(e)(2) (West 2014)), or by
    
    paying subsidies to the state or local government (35 ILCS 200/15-86(e)(3) (West 2014)). But
    
    article IX, section 6, of the constitution requires exclusive use of the property itself for charitable
    
    purposes. Ill. Const. 1970, art. IX, § 6. A property owner cannot buy a charitable exemption.
    
    " 'The use to which the property is devoted is decisive rather than the use to which income
    
    derived from the property is employed.' " Provena, 384 Ill. App. 3d at 764 (quoting City of
    
    Lawrenceville v. Maxwell, 
    6 Ill. 2d 42
    , 49 (1955)). " '[P]roperty which is used to produce
    
    income to be used exclusively for charitable purposes may not be exempted from taxation, the
    
    test being, instead, the present use of the property rather than the ultimate use of the proceeds
    
    derived from the property sought to be exempted.' " Provena, 384 Ill. App. 3d at 764 (quoting
    
    People ex rel. Goodman v. University of Illinois Foundation, 
    388 Ill. 363
    , 374 (1944)).
    
    ¶ 143                           b. The No-Set-of-Circumstances Test
    
    ¶ 144           A party challenging the constitutionality of a statute can contend either that the
    
    statute is unconstitutional on its face or that the statute is unconstitutional as applied to the
    
    particular context in which the party acted or proposed to act. Lamar Whiteco Outdoor Corp. v.
    
    City of West Chicago, 
    355 Ill. App. 3d 352
    , 365 (2005). The township defendants challenge the
    
    facial constitutionality of section 15-86.
    
    ¶ 145           Our supreme court has said this about facial unconstitutionality:
    
    
    
                                                     - 39 -
                   "It is especially difficult to successfully mount a facial challenge to
    
                   a statute. The fact that a statute may operate invalidly under some
    
                   circumstances is insufficient to establish facial invalidity; a statute
    
                   is facially unconstitutional only if ' "no set of circumstances exists
    
                   under which the Act would be valid." ' (Emphasis added.) In re
    
                   C.E., 
    161 Ill. 2d 200
    , 210-11 (1994), quoting United States v.
    
                   Salerno, 
    481 U.S. 739
    , 745 (1987). Thus, so long as there exists a
    
                   situation in which a statute could be validly applied, a facial
    
                   challenge must fail." Hill v. Cowan, 
    202 Ill. 2d 151
    , 157 (2002).
    
    ¶ 146          The no-set-of-circumstances test seems problematic to us for three reasons, which
    
    we will discuss under the following headings.
    
    ¶ 147                       (1) The Supreme Court of the United States
                                   Apparently Has Never Used the Test,
                                   and in Fact Has Backpedaled From It
    
    ¶ 148          Hill poses the question of whether any "set of circumstances exists under which
    
    the Act would be valid" or whether "there exists a situation in which [the] statute could be validly
    
    applied." (Emphases added and internal quotation marks omitted.) Id. And yet surely, when a
    
    party contends that a statute is unconstitutional on its face, Hill does not expect the court to
    
    perform an extrajudicial investigation to find out if some alternative set of circumstances
    
    empirically "exists." Id. Rather, Hill must mean "hypothetically exists": the court should try to
    
    hypothesize an alternative set of circumstances, or imagine a different "situation," in which the
    
    statute would be constitutionally valid. Id.
    
    ¶ 149          One problem with this speculative approach is that the originator of the no-set-of-
    
    circumstances test, the Supreme Court of the United States (see United States v. Salerno, 481
    
    
    
                                                    - 40 -
    U.S. 739, 745 (1987)), has more recently stated: "In determining whether a law is facially
    
    invalid, we must be careful not to go beyond the statute's facial requirements and speculate about
    
    'hypothetical' or 'imaginary' cases." Washington State Grange v. Washington State Republican
    
    Party, 
    552 U.S. 442
    , 449-50 (2008). This seems another way of saying that when determining
    
    whether a statute is facially unconstitutional, we must be careful not to apply the no-set-of-
    
    circumstances test. See City of Chicago v. Morales, 
    527 U.S. 41
    , 55 n.22 (1999) (plurality
    
    opinion noting that "[t]o the extent we have consistently articulated a clear standard for facial
    
    challenges, it is not the Salerno formulation, which has never been the decisive factor in any
    
    decision of this Court, including Salerno itself"); Doe v. City of Albuquerque, 
    667 F.3d 1111
    ,
    
    1125 n.8 (10th Cir. 2012) (giving examples of cases in which the Supreme Court assessed the
    
    facial constitutionality of a statute and in which the no-set-of-circumstances test would have led
    
    to the opposite result, had the Supreme Court applied that test); Sonnier v. Crain, 
    613 F.3d 436
    ,
    
    463-64 (5th Cir. 2010) (Dennis, J., concurring in part and dissenting in part) (arguing that the no-
    
    set-of-circumstances language in Salerno is "nothing more than a controversial dictum" and
    
    stating that "diligent research" has failed to reveal "a single Supreme Court case—including
    
    Salerno itself—in which the holding actually relied on the 'no set of circumstances' test").
    
    ¶ 150              (2) It Is Unclear What the Phrase "Validly Applied" Means
    
    ¶ 151          Hill says a statute is facially unconstitutional only if no circumstances could be
    
    hypothesized in which the statute "would be valid" or "could be validly applied." (Internal
    
    quotation marks omitted.) Hill, 202 Ill. 2d at 157. We are unclear what the phrase "validly
    
    applied" means in this context.
    
    ¶ 152          To explain our uncertainty, we invite the reader to assume the existence of an
    
    Illinois statute that provides: "A charitable exemption shall be granted to every parcel of real
    
    
    
                                                   - 41 -
    estate that has an odd-numbered street address." Pursuant to the no-set-of-circumstances test, we
    
    can easily hypothesize that, somewhere in Illinois, there exists a parcel of real estate used
    
    exclusively for charitable purposes—a food bank, for instance—that has an odd-numbered street
    
    address. Could the statute be "validly applied" to this hypothetical food bank? Id.
    
    ¶ 153            Well, yes and no. It depends on what you mean by "validly applied." More
    
    precisely, it depends on what part of the statute you are applying. The part of the statute reading
    
    "[a] charitable exemption shall be granted" could be validly (constitutionally) applied to the food
    
    bank, because the food bank is used exclusively for charitable purposes, in satisfaction of article
    
    IX, section 6 (Ill. Const. 1970, art. IX, § 6). But the part of the statute basing the exemption on
    
    having "an odd-numbered street address" could not be validly applied to any parcel, no matter
    
    what the circumstances, because granting an exemption merely on the basis of having an odd-
    
    numbered street address, without regard to exclusive use for charitable purposes, violates article
    
    IX, section 6.
    
    ¶ 154            This illustration we have come up with might at first seem far-fetched, but
    
    actually, as far as article IX, section 6, is concerned, providing charitable services equivalent in
    
    value to the estimated property tax liability is just as irrelevant as having an odd-numbered street
    
    address. When it comes to the charitable exemption, all article IX, section 6, cares about is
    
    whether the property is "used exclusively for *** charitable purposes." Id. Article IX, section 6,
    
    on its face, is completely indifferent to whether this exclusively charitable use makes the
    
    exemption financially worthwhile for the government, just as it is completely indifferent to
    
    whether the property has an odd-numbered street address.
    
    ¶ 155            If the legislature wished, it could provide that even though property is used
    
    exclusively for charitable purposes, the property shall be exempt from taxation only if,
    
    
    
                                                    - 42 -
    additionally, the value of the charitable services equals or exceeds the estimated property tax
    
    liability—because, again, the legislature is free to make the terms of an exemption more
    
    restrictive than the terms in article IX, section 6 (Provena, 384 Ill. App. 3d at 741). But the
    
    legislature lacks the constitutional authority to provide that, regardless of whether the property is
    
    used exclusively for charitable purposes, the property shall receive an exemption if the value of
    
    the charitable services equals or exceeds the estimated property tax liability—because that would
    
    be adding to or broadening the exemption in article IX, section 6 (see id.).
    
    ¶ 156          Such, though, is the import of section 15-86. "[A] constitutional defect inheres in
    
    the terms of the statute itself, independent of the statute's application to particular cases." One
    
    1998 GMC, 2011 IL 110236, ¶ 86 (Karmeier, J., specially concurring). "[T]he omission of a
    
    provision which constitutional principles require," namely, use exclusively for charitable
    
    purposes, "is an inherent and inescapable flaw" in section 15-86 "which renders the [statute]
    
    invalid no matter what the circumstances." Id. ¶ 87.
    
    ¶ 157              (3) The No-Set-of-Circumstances Test Turns the Discussion
                           Away From the Statutory Text,Whereas, Seemingly,
                       When the Facial Constitutionality of a Statute Is Challenged,
                          the Discussion Should Be All About the Statutory Text
    
    ¶ 158          One of the drawbacks of the no-set-of-circumstances test is that it
    
    "completely divorces review of the constitutionality of a statute from the terms of the statute
    
    itself, and instead improperly requires a court to engage in hypothetical musings about
    
    potentially valid applications of the statute." (Emphasis in original.) Doe, 667 F.3d at 1123.
    
    The discussion gets diverted to the subject of the hypothetical food bank (to return to our
    
    illustration) when the discussion should be about the undeniably unconstitutional statutory
    
    provision that would award a charitable exemption merely on the basis of having an odd-
    
    
    
    
                                                    - 43 -
    numbered street address (or merely on the basis of equaling or exceeding the estimated property
    
    tax liability).
    
    ¶ 159             Even so, our supreme court, in conformance with Salerno, has prescribed the no-
    
    set-of-circumstances test for facial challenges to the constitutionality of statutes (One 1998
    
    GMC, 2011 IL 110236, ¶ 20), and therefore our duty, as an inferior court, is to apply the no-set-
    
    of-circumstances test to determine whether a statute is facially unconstitutional—even though we
    
    have difficulty making sense of the test so as to even be able to apply it. But we will do our best.
    
    ¶ 160             The crucial provision in section 15-86 is the first sentence of subsection (c): "A
    
    hospital applicant satisfies the conditions for an exemption under this Section with respect to the
    
    subject property, and shall be issued a charitable exemption for that property, if the value of
    
    services or activities listed in subsection (e) [(35 ILCS 200/15-86(e) (West 2014))] for the
    
    hospital year equals or exceeds the relevant hospital entity's estimated property tax liability, as
    
    determined under subsection (g) [(35 ILCS 200/15-86(g) (West 2014))], for the year for which
    
    exemption is sought." 35 ILCS 200/15-86(c) (West 2014). We can imagine a hospital applicant
    
    that, during the hospital year, provided services and activities listed in subsection (e) that equaled
    
    or exceeded its estimated property tax liability and that also used its subject property exclusively
    
    for charitable purposes (although section 15-86, by its terms, does not require such exclusively
    
    charitable use as a condition of the charitable exemption). "[C]ould" section 15-86 "be validly
    
    applied" to this hypothetical hospital applicant? Hill, 202 Ill. 2d at 157. Again, it depends on
    
    what you mean by "validly applied."
    
    ¶ 161             If you understand "validly applied" in a result-oriented way, yes, section 15-86
    
    could be validly applied to our hypothetical hospital applicant, because this applicant uses the
    
    subject property exclusively for charitable purposes and because article IX, section 6, of the
    
    
    
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    Illinois Constitution (Ill. Const. 1970, art. IX, § 6) allows the legislature to grant a charitable
    
    exemption for property used exclusively for charitable purposes.
    
    ¶ 162           By this reasoning, though, the legislature could have passed a statute providing
    
    simply that "every hospital applicant shall be granted a charitable exemption," and because it
    
    would be possible to hypothesize at least one hospital applicant that used its property exclusively
    
    for charitable purposes, a challenge to the facial constitutionality of the statute likewise would
    
    fail. But denying the facial unconstitutionality of such a statute would be absurd. The result-
    
    oriented approach cannot be right.
    
    ¶ 163           It would make more sense to say that an unconstitutional criterion cannot be
    
    "validly applied" to any hospital applicant and that by disregarding the unconstitutional criterion,
    
    we would effectively be deleting an essential part of the statute instead of taking the statute as it
    
    is. Hill, 202 Ill. 2d at 157. A statute granting a charitable exemption to all hospital applicants
    
    cannot be "validly applied" even to a hospital applicant that uses its property exclusively for
    
    charitable purposes, because the statute grants an exemption on the basis of an unconstitutional
    
    criterion: being a hospital applicant. A "law" purporting to grant a charitable exemption has to
    
    contain the criterion that article IX, section 6, requires: "use[] exclusively for *** charitable
    
    purposes." Ill. Const. 1970, art. IX, § 6.
    
    ¶ 164           Measured against the terms of article IX, section 6 (id.), section 15-86 is
    
    unconstitutional on its face because it purports to grant a charitable exemption on the basis of an
    
    unconstitutional criterion, i.e., providing services or subsidies equal in value to the estimated
    
    property tax liability (35 ILCS 200/15-86(c) (West 2014)), without requiring that the subject
    
    property be "used exclusively *** for charitable purposes." Therefore, the trial court should
    
    have denied plaintiff's motion for summary judgment on count II, which sought a declaratory
    
    
    
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    judgment that section 15-86 applied to the determination of whether the four parcels were
    
    exempt for the assessment years 2004 to 2011. Because section 15-86 was unconstitutional, it
    
    was unenforceable from its inception. See People v. Blair, 2013 IL 114122, ¶ 30.
    
    ¶ 165                                 III. CONCLUSION
    
    ¶ 166          For the foregoing reasons, we reverse the trial court's judgment, and we remand
    
    this case for further proceedings.
    
    ¶ 167          Reversed and remanded.
    
    
    
    
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