of first impression the question of the statutory constitutional qualification for property tax exemption is a matter that has been before this court fact it has been before this court in recent times in two thousand and four this court had the opportunity to revisit the method disperses scores and factors the standards set forth by the court the guidelines articulated by this court dealing with the issue of constitutional use constitutional and charitable use of property for purposes of property tax exemption in that matter the court reaffirmed those factors reaffirmed those guidelines and is this court knows those are guidelines not any one of them are determinative they are factors and guidelines that are considered in the evaluation of an institution and the determination as to whether or not that institution meets the qualifications for charitable exemption in the state property tax exemption the question presented to this court today is what place if any does the amount of free care given by a public charitable institution in a given year have to do with charitable exemption we submit that the director in this case the decision underlying this proceeding was in error and it was in error based on the director's application of a factor that has never been recognized by this court as one of the factors to be considered indeed it is a factor that has been to the extent it has been addressed by this court is has been rejected as the basis on which to evaluate the nature of the charitable use the constitutional charitable nature and use of property is this court as you address the factors you're interested in the facts as they apply to the hospital in question that's absolutely correct justice and in this particular case and i think that the crux of your argument is that the amount of the charity that is extended makes no difference as long as it has extended some charity in turn no one away from care is that it would go beyond that justice thomas to address all of the course and factors but certainly the essence of our argument is in an instance where it is unchallenged uncontested any deeded needed by the state that this institution and provided free care to all we need and without limitation and without regard to their financial ability to pay that that institution qualifies for tax exemption and then that would be even in a factual scenario which i know is different from this one where there was one dollar of free service for example that could not be considered in light of all the other factors with respect to imposing a tax you're saying the quantum doesn't matter while the quantum doesn't matter for five thousand dollars it should matter for  justice thomas i don't know of and let me just before i start to interrupt or are you saying in this particular case it should matter when you look at the facts as it relates to this case as to what was given in light of all the other factors there was enough free service or are you asking this court to say you cannot consider that at all no no justice thomas with this case like all tax exemption cases of this nature are determined on the basis of its own facts and circumstances and our position is based entirely on the record evidence and challenge going to provide a covenant it's charitable nature it's charitable use and the evidence which is unrebutted on the issue that it provided free care to all indy without limit and without regard to financial ability on the part of any patient who applied for that assistance and under those circumstances we believe considering the other factors as well which are satisfied also in our position that that that there is no question but that charitable exemption is made out on the part of this institution and we're not arguing in some broader concept that it doesn't matter what amount of charity here free care was given free care give given without limit indeed the record here shows that in two thousand and four for example there was that the state has pointed to two thousand and four and said that this institution changed its charity care guidelines and there was  for assistance well there's no basis in the record for that argument but what there is in the record is the following the cost being incurred by the hospital in two thousand and three in two thousand and four was increasing both in terms of the medicaid and medicare unfunded cost between incurred in the service of those poor and vulnerable vulnerable patients but also the free care and indeed in two thousand and four the hospital the evidence reflects that it's i'm a track by the time this was tried the year had not closed out but it was on a path to lose three million dollars in two thousand and four nevertheless the institution gave away not only approximately two million dollars in free care but ten million plus in terms of other shared little benefits the state has and we have of course in our brief gone in to say at some length that the nature and manner of the collection activities and the use of collection activities by this institution there is not a shred of evidence in the record of this case that suggests previous company it ever sued a charity care patient there is also no evidence that provision that ever submitted a patient to collections in a situation where that individual had demonstrated had applied for financial assistance and had qualified for that it says certainly those claims are made in the briefings there's no question and it is troubling justice and we've addressed it in the reply and we've gone into at length the citations and claims that privy to see patients garnished patients otherwise took advantage of poor and needy people when in fact the record evidence reflects that that is not the case and that there's no basis for that and part of the problem here appears to stem from the fact that the state has decided that it doesn't like the record evidence as it was presented to in a l j accepted into the record and then deemed by the director after the director rejected the ael j s recommended decision to allow dissension the director year later decides to rule out of hand and on the basis of a conclusion that that evidence going to the charitable nature the lack of garnishment the lack of collection activity was somehow your wallet that record evidence cannot be ignored but it was and furthermore no deference is do that type of determination in the state's effort to curtail consideration of the full record evidence is just not appropriate i have to you know i want to go after this but i have to under understand your position on it we're going to hear from the so i go back to that initial question on the dollar you know we made on that particular four point the court may agree with you it may or three with opposing counsel but you started out you're talk that we were not to consider that or at least i thought you were saying that and that's why i raised the dollar specter is is this court going to be forced to do term and whether or not there was a small percentage to charity as we look at it or there was enough given to charity that extended to everybody who asked just your position and they're going to think it's important and i think it's a two per response if i might just as in the first instance there is no requirement that some specific quantum of free care be given in a given year by a charitable institution that has never been the requirement and it shouldn't be the requirement there's no basis that the general assembly for example h determined not to make that a statutory criteria it has in the course has been invited by the constitutional if i may do you agree or disagree it should be part of the totality of the circumstances that can be a stamp i certainly agree that charity care the provision of charity care in the methods by which it is done is a relevant factor the amount of charity given in a given year is also a relevant factor it could go to for example the issue of credibility it could be used for purposes not the overall assessment of whether or not you have an institution of public charity and one of the probably have been cases such as st francis and when a bank a home for the aged the choir just such as we are allowed just such  they have allowed evidence as i've suggested that it's not out of bounds to consider how much free care was given but they have also gone beyond consistent with this court's precedence for over one hundred years to look at other factors to look at the tally the of the circumstances pertaining to a public institution and at the end of the day they have decided and sisters of the third order is a perfect example it doesn't matter that there is a disproportionate number of people who pay for their services as opposed to were provided with free care that's not the standard that's not part of the test that's not part of the constitutional requirement for purposes of exemption but but  justifiably part of the evidence yes or absolutely there but i we certainly didn't contests and don't contest the notion that that information should be allowed but we don't see that as being material or even significant in a circumstance where there is ignition but the institution provided charity care to all the need and without limitation that's the record evidence and the state has worked over time in an attempt to go back into a record to selectively take pieces and to mischaracterize evidence in order to create a circumstance along the lines of the levy along the lines of a highland park along the lines of a riverside or some other case where this court has looked at not just the amount of charity care or the the offer of charity care and the benefits extended but whether or not obstacles were created put in the path of individuals limits were placed on the amount of charity were in fact there was no charity giv pronged issue one in the first instance there's a dispute over what the factual record is one thing is clear look the facts in the record in this case are undisputed no evidence was offered by the state no contest no objection to end of the evidence that was offered in the course of two weeks by providing a covenant in support of its charitable nature and exemption to the extent that the director has later on determined that certain of that evidence is not in his view relevant that says nothing about the facts under the law under their rules under the law of this state all of that evidence that was properly introduced into committed is there to be considered in the director can cannot ignore that information as he has done in this instance furthermore as to the standard to really review while those facts are uncontested they went unchallenged we do have a mixed question we very much dispute what the proper legal standard is and that those two are the methodists versus and factors as adopted and recognized again even retirement are they the test and standard for purposes of charitable exemption we submit that they are and that they have within them no requirement as  director had that opportunity remember the a on j following this trial the presentation of seventeen witnesses two weeks of evidence prepared two hundred twenty findings of fact is well his conclusions of law made the recommendation that this institution be recognized as charitable exempt said that's the director who spent a year a year looking at that record coming to the conclusion that the ails he was wrong and wrong because of the standard wrong because of the facts so said the director applying a standard that's never going to doctor indorsed by this court and disregarding the the proper standard of review which we believe this court has every  standard by which tax exemption issues shall be decided in fact if you look to even a retirement for example the court looked at in a mixed question circumstance and said there's a do know of a review subsequently the court then determined that looking back at the bellville case that now there was a different analysis and mix questions would be taken up on a clearer base then of course there's been the recent decision an excellent  brings us back full circle to the point that it's done novo in a circumstance where the parties are disputing what the proper standard what the proper constitutional and statutory requirement is the amount of free care given in a given tax year has never been part of the standard in illinois and should not be part of the standard in illinois the the general assembly has begun to take some action to look at the question of hospitals and their provision of charity care this of course comes as we all know at a very difficult time for health care generally and hospitals in particular hospitals in this country are operating on razor thin margins they're not being paid for the cost of the care that they provide to medicare and medicaid patients and their confronted with increasing numbers of uninsured now the general assembly would be the proper place to determine if there's going to be a change in the law and if there's going to be a requirement that some specific level of charity care be given that should come as a consequence and a product of that legislative process as invited and set forth in the constitution the department on this issue has never addressed the sisters of the third quarter and related to holdings on the issue of free care in the amount of free care this court has this court has looked at it that issue and very comfortably determined it to lack merit as they claim there should not be as long as the other guidelines are satisfied the amount of free care given in a year it may be considered but it is not determinative and as we s to the extent that there will be a change in the law we believe that that ought to be left to the legislature to address the director has created further error however in his decision and as we've noted  was restricting this provision of charity was not acting in a charitable manner with respect to charity care patien we have demonstrated that the record facts are otherwise there was not a high power see that was not a practice that was not in a vent where a charity care patients went without care went with out  charity care is necessary and without some kind of harassment doesn't mean or other activity on the part of this hospital it's one of the absolute fictions against this record to suggest that that happened and we've gone into that record  testimony at length and i don't mean to take you through it again chapter and verse we've said it for out in the brief but there is no basis for the assertion that we should bills to every patient that's not the case charity patients were not  bills for the very reason that there was an inability to pay there was not a limitation on the amount of charity given against just a policy indeed the director recognized that in circumstances where someone was given less than one hundred percent free care the hospital continued to stand ready to make other adjustments as necessary based on the individual circumstances that person there was not the instance where a single charity patient was subjected to a garnishment collection or other there's just nothing in the record to suggest that those activities occurred when you apply all of the factors scuse me endorsed by this court in the methodist case and then recognized again and even retirement this institution qualifies for charitable tax exemption the evidence is overwhelmingly in support of that finding mr earlier in your argument i think you've made reference to some things that happened in the year subsequent two thousand question that evidence was received into evidence it was considered it's been argued on the part on the part of the state to suggest that i'm the basis of census figures alone that the reason that charity care increased in subsequent years was because of some withholding in two thousand and two the tax year in question there's no basis for that indeed the census figures suggesting that there were larger numbers of people of poor people in that community say nothing at all about the charity care program in operations of this hospital but to the extent that any of that information was allowed in it was a lobbying to give more context to end up by a fuller record explanation of what this institution was how it went about providing it charitable services and how those circumstances altered year by year so that in some years you had more to be called for and given in other years you had left but excuse me counsel your time is up really want is your honor with respect yes the director first of all made no findings arrive that no determination as to religious use of this property the director in the course of eight years spent studying the a findings and recommendations somehow missed the fact that she had arrived that determined that should exemption was warranted and never reached the issue of of religious use and exemption on those grounds nevertheless the record facts demonstrate that not only did provide a covenant evidence showing this catholic health ministry and all of the things that it does being so obviously connected to the exercise of religious faith that it it could not be rejected on the basis of that evidence and did not i that's correct just which and which leaves me in the quandary of understanding how the religious exemption issue even is before us at this point well the the real the religious exemption issues before us because it was applied for it was proceeding before the department of revenue it was not only introduced and requested but it was acknowledged by the department of revenue to be an issue that was president didn't you have to make a didn't you have to go before the county board or the board of review is it that we make that claim at that level before you even began the administrative process and that is that that would have been the first opportunity within which to raise that issue it was not required and it certainly wasn't because the board of review remember in this system only makes a recommendation they made a recommendation only on the basis of charitable use an exemption and by the time it gets to the department of review that's when the administrative proceeding begins and we have the opportunity to set forth what our claims are and what our entitlement is under the law and in that instance to the extent that our proofs were conforming to a claim for religious exemption as well it was offered it was accepted by the department it was accepted by the a o j and it was simply not ruled upon because charitable exemption was granted or at least recommended by the just not ruled upon out of the directive that i don't know to this day we don't have any ability to understand what the director thought he was doing when it came to the adoption of a decision that was not made by the thank you thank you the amount of uncritical the amount of charity care is determinative worth it or at the crux of the issue we submit that it is because under this court's scores in case the sixth factor the use of the property itself is the critical constitutional question this factor is the only one of the six that nearly verbatim tracks the language of the illinois constitution and this court held in the canon case that that determination about the use of property is the controlling factor for that reason the appellate court correctly called this factor of the scene a quantum on of exemption because it doesn't matter whether organization itself is charitable is a charitable organization what matters on that analysis is whether it's using the property for a charitable purpose mr siegel and their point that the hospital be a free service to all  to qualify for the exemption and the next year it's four hundred thousand dollars i mean we've is it it's in your your assessment yes it is wrong tax a tax exemption is determined on an annual basis just because you have it for one year does mean you have it for every year and again going back to my question that these cases hinge on their very practices i mean are we being asked to set a floor for the amount of care that require that has to be given no you're not because as the chief justice pointed out this court has determined over one hundred years ago that the amount of free care is critical free and discounted care and it cannot drop below as this court held in the night you know seven sisters of the thorpe third order case five percent and that in that case the hospital gave five percent totally free care not free and discounted totally free care and the court need not set we all know that and we just have to turn on the t v for thirty seconds to be aware of that but the the fact is five percent you know fifty thousand dollars is a lot less than five percent fifty million dollars so next year in the providence hospitals case the reasoning of that case was extended and that hospital provided twenty percent free care and then on the same day that the court decided providence hospital decided german hospital where a substantial that was a standard a substantial amount of free care was provided but all the court need to do in this case on this factor this critical factor is decide is decide that zero point seven percent of revenues  why why would we better all be better off in this dave i'm sure we're going to hear home medicare and medicaid impacts the bottom line of the hospitals and and a number of other things that they do outside of the hospital that should qualify as free care and everything else there is a dispute factually and that's why i asked you that initially as to whether or not the hospital provided free care to all who needed it and you say no they say yes why would why would this court be better off than trying to frame some type of quantum of care that's necessary to indicate exactly what they're asking for as long as the hospital is set up or is a not for profit charitable institution why don't we just look at it as if everybody who comes in the door they're going to allow the care and look at this case specially what if you other cases have been looked at to see if it was meant in this particular case well couple responses  all being a not not for propping set up as a not for profit entity is not tantamount to being a charitable institution i understand their documents don't control their actions they have to the question is whether they use the property for  charitable purposes not what they say in their articles of incorporation but the facts here show that the they did not provide charity to everybody who needed it because they define down word what that need was in two thousand and two their own charity care policy which is founded c twenty eighteen of the record shows that they gave that you were only eligible hugh made between eighty eight thousand eight hundred sixty dollars and twice that brought within two years and i believe that the two thousand and four evidence that they submitted to the record is relevant for comparative purposes they raise the ceiling to three hundred percent of the charity level so they say they define who who need a charity and the amount of charity they provided between the year two thousand and two and two thousand and four increased by million dollars from eight hundred thousand dollars and twenty zero through two thousand and four that's not explained as reviewed implies in its reply brief it's not explained by double increase in the cost of conceded that it in fact determined people were eligible for charity care and then sent them to debt collection in that order that there were sixty four people who showed up on both both those lists and the record shows the testimony of their very  financial counsellor testified and here in question does every patient see the bill the total charges of the billing stated answer yes that's it c three twenty seven the hospital c e o also said a bill will be produced for every patient depending upon what patient the bills importantly do not mention free or discounted care they talk about financial assistance which which sounds like financing and they tell the patients to make arrangements and the bills were sent from the hospital billing remittance drive thirty days later then only then were charity applications sent quote if the situation warrants unquote based on an interview with a financial counselor and then subsequent to that  collection there's only two patients in the record that i have found mentioned in among among the twelve that purina discussed in its reply brief who got debt collection first and later were given some kind of charity and it's not clear if the outside debt collection agents were wearing the same hat is the financial aid counselors and one of those one of those individuals was a forty one year old man who died and so the hospital gave charity care reduced his bill only in death the appellate court has recognized numerous times that to moving somebody from the debt collection column whether point that council made about not billing the poor and sending charity patients to debt collection again the sixty four were people who were charitable because they were at two hundred percent of the federal  two that they placed with collection agencies those accounts carrying an unpaid balance including charity care and government assistance and it also supplied to us a list of patients whose accounts quote merited a percentage reduction unquote because of poverty and were quote referred to collection unquote after not paying the balance of their discounts under the clearly erroneous standard is whether those facts meet the establish legal standards but does it preclude us from the king and the factual findings and just looking at the factual doesn't find all of them and find all of them relevant or determinative and they have a different view on certain certain aspects of your honor's for nearly a hundred forty years property taxes property tax exemption until constitution has required property owners to show primarily charitable or religious use of their properties and over one hundred years ago as we've been discussing this court answer the central question in this appeal namely what's expected of a hospital for charitable exemption applying those precedents last year the appellate court correctly denied community exempt status in part because it didn't quote give liberally as this court's precedents whole instead it sells at a profit court held there's nothing particularly kind of benevolent about selling somebody something for the intervening century no decision by this court has upheld a charitable exemption when nearly one hundred percent of an entity's revenue comes from paying customers no decision can be read as endorsing exemption for free services accounts for less than a one percent use of the property but here preview directors just a zero point seven percent of more than one hundred million dollars in revenue for free and discount matter you talk about the religious exemption your honor yes no i don't i don't believe that the holding in that case allowed prevents this court from reviewing the religious exemption  intrinsic to the mission of perjury in a hospital or whether they provide a protest for all care twenty four hours a day seven days a week the appellate court's discussion of those issues with which we didn't urge is dicta in its opinion there's no first amendment issue here for that reason and because previous never raised that issue it's p l s and it never raised it below in its briefs this court doesn't review the appellate court decision and that discussion in the appellate court's decision is not germane to the case there's no decision by this court that is allowed charitable exemption when debt collectors were used but as we've already discussed they sent sixty four patien reimbursement doesn't count towards the charitable bottom line in the first district appellate courts midwest physicians group case and riverside and leave you hospital and no decision counts as charity what the hospital and its a miki call community benefits this is the established precedent that the director's decision follows and what privy to seeks is a radical departure from this court set of precedent and from the illinois constitution and our constitution imposes a demanding burden on taxpayers for one main reason to separate businesses that don't merit favorable tax treatment for actual charities that do constitution also recognizes that certain pipes are property owners and certain categories automatically ar profit hospital any different a for profit hospital work for that matter for any for profit business i'd like to discuss the charitable exemption a little further and get to some of the court's questions about which factors are germane which fact they're all germane but there are three independent ways that this court can affirm the director and with respect to just the organizational factor there are two there are two requirements first organization must be charitable the second its use of the property must be charitable this court made that determination in the chicago traumas case group with respect to just the organizational factor the record silent about the seven other entities under the p hospitals we don't know what was going on at the hospital in st danville or elsewhere in the state and because the facts alternatively because the facts don't show that this one hospital was charitable it can't they can't meet the exemption on first approach about the seven other hostages we stand on our brief unless the courts and questions if there's a third reason which we touched upon an independent reason for the courts to determine no exemption here is warranted and that's the the sixth course and factor the critical factor against the weight of precedents from one thousand seven zero eight which is reflected in this court's later decisions like even where it was very it was only one instance i think in that case where a retirement home a resident was given is sufficient for granted is trying to alter the constitutional standard and it is for this court not the legislature to determine what constitutes a constitutional charitable use mr singleton the director you can't you can do that but he also absolutely he also found that they were entitled to a religious exemption and they needed to raise that before the court the religious exemption believe it can be under the united city's gas case with the court can take into account the totality of the record and determine whether the record supports the conclusion of the agency and no remember is necessary and as we've argued in our brief and charitable exemption and the religious exemption puzzled how the director how it happened a state based his finding a part of statement that wasn't there well it was it was mistaken absolutely but i believe that he read the a conceded at this point that a remained on the religious issue would not be efficient and we agree under our laws businesses pay taxes your honor they pay taxes like everyone else to ensure that the tax issue itself was raised for the first time before the department and it's been  briefly your honour's with the acknowledgement that the director did not apply the standard that has been set down by this court for over one hundred years reflects the fact that there was committee that this decision must be reviewed reversed there is no standard that allows the director to the side charitable exemption on the basis solely of the amount of free care given the year is but acknowledge now that that's exactly what he did that's certainly what his decision says he did and that is inconsistent with the law it's inconsistent with the teachings of this court and should be reversed summarily with respect to this issue again that that won't go away the director did not find anywhere in the decision that we head billed charity patients furthermore the director recognize that the use of collection agencies was occasioned by the fact that in two thousand and two privy to did not have a system that allowed ch care in other patients to set up a payment plan for those who were in a position to pay something for their care for that reason they were referred to and collection agencies serve that function the director accepted them there was no notion no finding at all by the stipulated in the fact show that previous personnel made outreach efforts on an ongoing basis did not as the government had argued rely on word of mouth they provided all types of information to those folks who were in need of charity care and assisted them in connection with applications for care the suggestion that people went without care here has no basis in the record nor does there is a basis to find that people were sued harassed or otherwise mistreated simply does not exist in the record and indeed the stipulation i want to make your argument for but i think i was right here there there was a notice that went out that indicated if you do not have health insurance you may be eligible for medicare or medicaid hit care payment arrangements or the hospitals financial assistance program and i have a toll free number absolutely justice i'm sorry if i've misunderstood prevented not only did outreach in the form of people who would interact financial counselors but they did send out those kinds of notices in compliance with law that identified and other forms of notice and advertising if you will about the availability of care this is not a circumstance such as those cases that have come along where there was a hospital that billed everybody didn't let people know about the availability of care and for that reason did not act in a charitable manner here at every turn this institution made known to people the availability of financial assistance the state wants to complain that we weren't we didn't say free care at the time but is justice thomas notices notes at that point in time not only to the law and not allow a reference to fre care but furthermore that notice put people conveyed to people the fact that if they needed assistance they could come to the hospital one of the things that's that was introduced into the evidence and we clearly have a dispute over what the record evidence is the director does not have to of course accept the recommendation or proposed findings by a nail jag but what the director has no authority to do is to deter a readout of the record evidence that has been introduced and admitted accepted by the yale j as relevant probative evidence allowed in without objection by the department of revenue once again that appellate counsel can't alter the record that was introduced below that's not to say that the director had to accept it the director could have rejected it stated in the briefs that he did he did not what he said was he found it irrelevant well how could it be irrelevant factors going to the very you shoes of the use of collection agencies for purposes of  will well to say that it's a relevant is a legal conclusion suggesting that it's somehow improper and not worthy of consideration you cannot arrive at and there's no deference to be given to a director who decides things i certainly agree with the point that the a l j doesn't dictate a decision to the director i don't know i'm asking if it's part of the record restoration or what is absolutely part of the record i believe that to the extent that for example justice broke that what we're talking about are factual find those are facts born in the record evidence and the director can reject them the question is whether or not that rejection is something that's appropriate or consistent with the standards here and of course as we know in his decision made clear oh he was looking at was one thing had turned the courts teachings contrary to the law for one hundred years the director decided and this is in obviously direct contravention of this court's instruction in sisters of the third order it doesn't matter how much free care you give away as long as you make it available to all without limitation and the director it mid that's what this hospital did