Illinois Official Reports

Supreme Court

Carmichael v. Union Pacific R.R. Co., 2019 IL 123853

Caption in Supreme

Court:

MARY TERRY CARMICHAEL, Appellant, v. UNION PACIFIC 

RAILROAD COMPANY et al. (Professional Transportation, Inc., 

Appellee; Jesse White, Secretary of State, Intervenor-Appellant).

Docket No. 123853

Filed

Rehearing denied

September 19, 2019

November 25, 2019

Decision Under 

Review

Appeal from the Appellate Court for the First District; heard in that 

court on appeal from the Circuit Court of Cook County, the Hon. 

Sophia H. Hall, Judge, presiding.

Judgment Judgments vacated. 

Cause remanded.

Counsel on

Appeal

John S. Bishof Jr., of Chicago, for appellant.

Kwame Raoul, Attorney General, of Springfield (Evan Siegel and 

Bridget Dibattista, Assistant Attorneys General, of Chicago, of 

counsel), for intervenor-appellant.

Hugh C. Griffin, of Hall Prangle & Schoonveld, LLC, of Chicago, and 

George H. Brant, of Judge, James, Hoban & Fisher, LLC, of Park 

Ridge, for appellee.
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Justices JUSTICE BURKE delivered the judgment of the court, with opinion.

Chief Justice Karmeier and Justices Thomas, Kilbride, Garman, Theis, 

and Neville concurred in the judgment and opinion.

OPINION

¶ 1 The plaintiff in this case was injured in a motor vehicle accident caused by a third party 

while riding in an employee transport van owned by defendant Professional Transportation, 

Inc. (PTI). She filed a declaratory judgment action in the circuit court of Cook County seeking 

a declaration that defendant was legally responsible for her damages due to a statutory 

violation. Specifically, plaintiff alleged that defendant’s vehicle insurance policy did not 

contain the minimum coverage required by section 8-101(c) of the Illinois Vehicle Code (625 

ILCS 5/8-101(c) (West 2010)). In response, PTI filed affirmative defenses alleging that section 

8-101(c) was unconstitutional. At the same time, PTI filed a counterclaim based on grounds 

identical to those alleged in its affirmative defenses. The trial court dismissed the counterclaim 

with prejudice. The appellate court affirmed the dismissal of the counterclaim, but on different 

grounds. 2018 IL App (1st) 170075. We now hold that the counterclaim was not a proper 

counterclaim under Illinois law. Accordingly, we strike the counterclaim, vacate the lower 

courts’ judgments, and remand the cause to the trial court for further proceedings consistent 

with this opinion.

¶ 2 BACKGROUND

¶ 3 In 2010, plaintiff, Mary Terry Carmichael, was an employee of Union Pacific Railroad 

Company (Union Pacific). Union Pacific contracted with PTI to transport its employees to and 

between job sites. On November 13, 2010, plaintiff was riding in one of PTI’s vans in the 

course of her employment when the van collided with another vehicle, causing plaintiff severe 

injuries. The driver of the other vehicle, Dwayne Bell, carried an automobile insurance policy 

with liability coverage of $20,000 per person and $40,000 per accident, the minimum coverage 

required by Illinois law. 

¶ 4 On September 15, 2011, plaintiff filed a complaint in the law division of the circuit court 

of Cook County against Union Pacific, PTI, and Bell. Plaintiff sought money damages for her 

injuries based on negligence and violations of the Federal Employers’ Liability Act (45 U.S.C. 

§§ 51-60 (2006)). Subsequently, Union Pacific and PTI were dismissed from the case after it 

was determined that their conduct did not cause the accident. Plaintiff ultimately reached a 

settlement with Bell in the amount of $20,000, the maximum amount of his liability coverage. 

¶ 5 On October 17, 2012, while her negligence action was pending, plaintiff filed a three-count 

complaint for declaratory judgment and other relief in the chancery division of the circuit court 

against PTI, Union Pacific, and ACE American Insurance Company (ACE). In count I, plaintiff 

alleged that PTI was legally responsible for her damages because it was in violation of section 

8-101(c) of the Illinois Vehicle Code (625 ILCS 5/8-101(c) (West 2010)). The version of 

section 8-101(c) in effect at the time of the accident required “a contract carrier transporting 

employees in the course of their employment on a highway of this State in a vehicle designed 

to carry 15 or fewer passengers” to maintain uninsured and underinsured motor vehicle 
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coverage “in a total amount of not less than $250,000 per passenger.” Id. The statute required 

affected contract carriers to file proof of financial responsibility with the Secretary of State. Id.

Pursuant to section 8-116 of the Vehicle Code, a contract carrier who failed to comply with 

section 8-101(c) was guilty of a Class A misdemeanor. Id. § 8-116. 

¶ 6 Plaintiff alleged that PTI’s liability policy did not meet the statutory minimum because its 

uninsured and underinsured motor vehicle coverage was limited to $20,000 per passenger and 

$40,000 per occurrence. She sought a judicial declaration that PTI was legally responsible for 

her damages sustained in the accident in excess of Bell’s insurance policy limits, up to a 

maximum of $250,000.1

¶ 7 PTI initially filed an answer and affirmative defenses on April 23, 2013. On October 2, 

2013, PTI filed its amended answer, five affirmative defenses, and counterclaim. The first four 

affirmative defenses alleged that sections 8-101(c) and 8-116 of the Vehicle Code were 

unconstitutional. First, PTI alleged that the statutes constitute prohibited special legislation, in 

violation of article IV, section 13, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. IV, 

§ 13). 

¶ 8 Second, PTI alleged that the statutes violate the equal protection clauses in the state and 

federal constitutions (Ill. Const. 1970, art. I, § 2; U.S. Const., amend. XIV), on the grounds 

that “no other motor vehicle passenger carriers in Illinois are burdened with the unique 

requirement of maintaining such insurance, and there is no reasonable basis to impose such a 

requirement on PTI and others who are similarly situated.” 

¶ 9 Third, PTI alleged that the statutes violate the due process clauses in the state and federal 

constitutions (Ill. Const. 1970, art. I, § 2; U.S. Const., amend. XIV) because they “are 

unconstitutionally vague and uncertain *** in that the underinsured motorist insurance 

requirements contained therein make ambiguous references to vehicles designed to carry 

‘fifteen or fewer’ passengers and impose ambiguous levels of insurance in a ‘total amount’ of 

‘not less than $250,000 per passenger.’ ” 

¶ 10 Fourth, PTI alleged that the statutes “constitute an undue and unreasonable burden on 

interstate commerce,” in violation of the commerce clause of the United States Constitution 

(U.S. Const., art. I, § 8, cl. 3), “in that contract motor carriers, such as PTI, which transport 

passengers in interstate commerce, could not know how much underinsured motorist coverage 

to obtain in advance of operating, *** and this and other burdens imposed by the statute would 

unreasonably burden PTI and other similarly situated contract carriers.”

¶ 11 PTI’s fifth affirmative defense alleged that section 8-101(c) does not provide any civil 

remedy for statutory violations. It alleged that the criminal penalty in section 8-116 is the sole 

enforcement mechanism for section 8-101(c) and, thus, plaintiff could not rely on the statute 

as grounds for filing a private cause of action. 

¶ 12 Along with its amended answer and affirmative defenses, PTI filed a separate counterclaim 

seeking a declaratory judgment against plaintiff and the State of Illinois, by and through the 

Illinois Attorney General and the Illinois Secretary of State. The counterclaim restated the 

identical constitutional arguments alleged in PTI’s first four affirmative defenses. The 

constitutional claims were the only legal grounds set forth in the counterclaim. In its prayer for 

1

Counts II and III of the complaint against Union Pacific and ACE were dismissed with prejudice 

and are not at issue in this appeal. 
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relief, PTI asked that the trial court declare unconstitutional section 8-101(c) and section 8-

116, to the extent it applies to section 8-101(c). PTI also requested “that [plaintiff’s] 

declaratory judgment action be dismissed with prejudice as to PTI.”

¶ 13 On December 3, 2013, then-Attorney General Lisa Madigan filed a motion to dismiss the 

counterclaim pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (735 ILCS 

5/2-615, 2-619 (West 2010)). Attorney General Madigan argued that PTI’s claims should be 

dismissed because it failed to follow the procedure set forth in Illinois Supreme Court Rule 19 

(eff. Sept. 1, 2006). Under this rule, a party challenging the constitutionality of a statute must 

provide notice to the Attorney General in order to afford the appropriate state officer “the 

opportunity, but not the obligation, to intervene in the cause or proceeding for the purpose of 

defending” the statute. Ill. S. Ct. R. 19(c) (eff. Sept. 1, 2006). Here, PTI avoided this process 

by filing a declaratory judgment action directly against state officials. Thus, Attorney General 

Madigan argued that the counterclaim should be dismissed as procedurally improper. 

¶ 14 Attorney General Madigan also argued that PTI’s constitutional claims failed on the merits. 

Thus, the counterclaim should be dismissed with prejudice. Alternatively, she suggested that 

the court could avoid addressing the constitutional issues by resolving the case on 

nonconstitutional grounds, i.e., by holding that section 8-101(c) does not provide for a private 

cause of action. 

¶ 15 In response, PTI argued that deciding the case on nonconstitutional grounds would not 

completely resolve its counterclaim, for the following reasons:

“This Court’s declaration that 5/8-101(c) does not provide a civil remedy would 

not be binding in other civil cases brought by other plaintiffs against PTI under the 

statute. Moreover, such a finding would not fix PTI’s rights regarding any criminal 

prosecution that might be conducted against PTI under the statute. Resolving PTI’s 

counterclaim, which seeks a determination that the offending UM/UIM insurance 

obligation imposed by 5/8-101(c) is unconstitutional, is the only way to finally 

determine the rights of all of the parties to this case.” 

¶ 16 With leave of court, on May 16, 2014, PTI filed its third amended counterclaim naming 

Illinois Secretary of State Jesse White and plaintiff as the only counterdefendants. On the same 

day, PTI filed a motion to dismiss count I of plaintiff’s complaint, arguing that section 8-101(c) 

does not provide for an express or implied private right of action. PTI also argued that its 

vehicles did not fit the definition of “a vehicle designed to carry 15 or fewer passengers” and, 

therefore, that section 8-101(c) was inapplicable.

¶ 17 On January 30, 2015, the trial court entered an order granting the State’s motion to dismiss 

the third amended counterclaim with prejudice. In a written decision, the court examined all of 

PTI’s constitutional claims and determined that each of the claims lacked merit. The court did 

not address any procedural irregularities presented by the counterclaim, nor did it address the 

private right of action or statutory interpretation issues raised by PTI.

¶ 18 On May 12, 2015, PTI filed a renewed motion to dismiss count I of the complaint. On July 

24, 2015, the trial court entered an order denying the motion. The court held that the statute 

did provide for an implied private right of action and, therefore, that count I need not be 

dismissed on that basis. PTI filed a motion to reconsider or for certification under Illinois 

Supreme Court Rule 308 (eff. July 1, 2017). The trial court denied the motion to reconsider 
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but granted the motion to certify a question under Illinois Supreme Court Rule 308. However, 

on January 13, 2016, the appellate court exercised its discretion to deny PTI’s appeal. 

¶ 19 Subsequently, plaintiff filed a motion in the trial court to voluntarily dismiss her complaint. 

On December 13, 2016, the trial court ordered the case dismissed without prejudice upon 

plaintiff’s motion. 

¶ 20 After the voluntary dismissal of the case, PTI filed a timely notice of appeal seeking review 

of the court’s January 30, 2015, order dismissing its counterclaim. PTI alleged the appellate 

court had jurisdiction because the December 13, 2016, voluntary dismissal of the case rendered 

all prior final orders in the case appealable.2 While the appeal was pending, on January 26, 

2017, plaintiff refiled her complaint in the trial court. The trial court ordered a stay of the matter 

pending resolution of PTI’s appeal. 

¶ 21 In the appellate court, PTI reversed its previous position. It argued that there was no need 

for the appellate court to reach the constitutional issues if the court determined that plaintiff 

had no private right of action under the statute. PTI conceded that the trial court’s order denying 

its motion to dismiss based on the private right of action issue was a nonfinal order. 

Nevertheless, PTI argued that the appellate court could address the legal basis for its motion 

as a means of resolving the case on nonconstitutional grounds. See Marconi v. City of Joliet, 

2013 IL App (3d) 110865, ¶ 16 (the appellate court has a duty to “avoid the adjudication of 

constitutional questions when a case can be decided on other grounds”).

¶ 22 On June 26, 2018, the appellate court filed a published opinion affirming the trial court’s 

dismissal of the counterclaim, but on different grounds than those relied on by the trial court. 

2018 IL App (1st) 170075, ¶¶ 24-25. Addressing the issue of whether a private right of action 

was implied in the statute, the court held that the criminal and civil penalties for violations of 

section 8-101(c)3 were sufficient enforcement mechanisms, rendering unnecessary a separate 

civil remedy for injured plaintiffs. Id. ¶¶ 21-23. Thus, the court held that the statute did not 

provide for an implied private right of action (id. ¶ 24) and, accordingly, that “Carmichael’s 

complaint against PTI should have been dismissed” (id. ¶ 2). The court further held that it need 

not reach the constitutional issues raised in the counterclaim because its decision rendered the 

counterclaim moot. Id. ¶ 24. 

¶ 23 This court allowed plaintiff’s petition for leave to appeal (Ill. S. Ct. R. 315(a) (eff. July 1, 

2018)) and granted the State’s motion for leave to intervene. PTI requests cross-relief on the 

constitutional issues raised in its counterclaim.

¶ 24 ANALYSIS

¶ 25 The order at issue in this appeal is the trial court’s January 30, 2015, order dismissing PTI’s 

third amended counterclaim with prejudice. Section 2-608 of the Code of Civil Procedure 

governs the filing of counterclaims. 735 ILCS 5/2-608 (West 2010). Section 2-608 provides: 

2

“It is well settled that final orders entered in a case become appealable following a voluntary 

dismissal.” Dubina v. Mesirow Realty Development, Inc., 178 Ill. 2d 496, 503 (1997).

3In addition to the criminal penalty in section 8-116, the Vehicle Code provides that contract 

carriers who cancel or withdraw their insurance policy required by section 8-101(c) are subject to 

suspension of their vehicle registrations. 625 ILCS 5/8-113 (West 2010).
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“§ 2-608. Counterclaims. (a) Any claim by one or more defendants against one or 

more plaintiffs, or against one or more codefendants, whether in the nature of setoff, 

recoupment, cross claim or otherwise, and whether in tort or contract, for liquidated or 

unliquidated damages, or for other relief, may be pleaded as a cross claim in any action, 

and when so pleaded shall be called a counterclaim.

(b) The counterclaim shall be a part of the answer, and shall be designated as a 

counterclaim. Service of process on parties already before the court is not necessary.

(c) Every counterclaim shall be pleaded in the same manner and with the same 

particularity as a complaint, and shall be complete in itself, but allegations set forth in 

other parts of the answer may be incorporated by specific reference instead of being 

repeated.

(d) An answer to a counterclaim and pleadings subsequent thereto shall be filed as 

in the case of a complaint and with like designation and effect.” (Emphasis added.) Id.

¶ 26 This court has defined a counterclaim as “an independent cause of action” “in favor of the 

defendant against the plaintiff, which the defendant is authorized to litigate in opposition to 

the plaintiff’s claim in the same action.” Wilson v. Tromly, 404 Ill. 307, 309-10 (1949). As an 

independent action, a counterclaim “must stand or fall on its own merits, regardless of the 

disposition of the complaint.” Health Cost Controls v. Sevilla, 307 Ill. App. 3d 582, 589 (1999); 

see also 735 ILCS 5/2-608(c) (West 2010) (“[e]very counterclaim *** shall be complete in 

itself”). “In order to state a cause of action, [a] counterclaim must be both legally sufficient 

and factually sufficient, setting forth a legally recognized claim as its basis for recovery, as 

well as pleading facts which bring the claim within the legally recognized cause of action 

alleged.” Nuccio v. Chicago Commodities, Inc., 257 Ill. App. 3d 437, 443 (1993). In contrast 

to an affirmative defense, which merely seeks to defeat the plaintiff’s cause of action by a 

denial or confession and avoidance, a counterclaim seeks affirmative relief. Wilson, 404 Ill. at 

309; Citicorp Savings of Illinois v. Rucker, 295 Ill. App. 3d 801, 806 (1998); In re Estate of 

Soderholm, 127 Ill. App. 3d 871, 875 (1984). 

¶ 27 A purported counterclaim that fails to allege an independent, substantive cause of action 

against the plaintiff and fails to make a specific prayer for relief is not a true counterclaim. See 

Rayman v. Peoples Savings Corp., 735 F. Supp. 842, 852 (N.D. Ill. 1990) (“The label 

‘counterclaim’ has no magic. What is really an ‘answer or defense to a suit does not become 

an independent piece of litigation because of its label ***.’ ” (quoting Tenneco Inc. v. Saxony 

Bar & Tube, Inc., 776 F.2d 1375, 1379 (7th Cir. 1985))). For instance, in Kendle v. Village of 

Downers Grove, 156 Ill. App. 3d 545, 554 (1987), the court held that neither of the defendants’ 

answers “contained a specific prayer for relief or raised a substantive cause of action against 

plaintiffs.” Thus, they could not be considered counterclaims. Id. at 553-54.

¶ 28 By contrast, in Soderholm, 127 Ill. App. 3d 871, the court held that a responsive pleading 

was, in actuality, a counterclaim. The plaintiffs in that case filed a declaratory judgment action 

seeking a judicial determination that Myrtle B. Soderholm, an incompetent person, had the 

requisite mental capacity to create a number of trust accounts under which the plaintiffs were 

the beneficiaries. Id. at 873. In response, LaSalle National Bank, the conservator of 

Soderholm’s estate, filed an answer alleging in part that plaintiffs had fraudulently abused a 

fiduciary relationship they owed to her. Id. In its prayer for relief, the bank asked the court to 

order plaintiffs to turn over any property in their possession belonging to Soderholm and 
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requested a judicial declaration that plaintiffs had no legal or equitable rights in any of 

Soderholm’s property. Id. at 873-74. The appellate court held that the bank’s answer 

constituted a viable counterclaim because it contained independent allegations against 

plaintiffs in support of its claims for relief. Id. at 875. 

¶ 29 A counterclaim that requests no affirmative relief and only seeks to defeat the plaintiff’s 

claims is really an affirmative defense, not a counterclaim. See Rayman, 735 F. Supp. at 852-

53. For this reason, the federal courts routinely hold that counterclaims that essentially 

duplicate the parties’ affirmative defenses should be dismissed or disregarded by the trial court 

as repetitious and unnecessary. See Malibu Media, LLC v. Parsons, No. 12-1331 (BAH), 2013 

WL 12324463, at *10 (D.D.C. May 31, 2013) (“[I]f the defendant prevails on these 

[affirmative] defenses, the result she seeks in the counterclaims will be moot. In these 

circumstances, the redundant counterclaims are simply superfluous ***.”); Malibu Media, 

LLC v. Doe 1, No. DKC 12-1198, 2012 WL 6681990, at *3 (D. Md. Dec. 21, 2012) (“Courts 

have typically declined to consider counterclaims for declaratory relief that are duplicative of 

affirmative defenses.” (collecting cases)); Rayman, 735 F. Supp. at 853 (count of counterclaim 

that duplicated affirmative defense added nothing to the pleadings already before the court and 

would be disregarded). 

¶ 30 Turning to the language in PTI’s third amended counterclaim, the first seven paragraphs 

summarize the declaratory judgment action filed by plaintiff against PTI. Following these 

summary paragraphs, paragraph eight alleges: 

“8. PTI’s Amended Answer raises affirmative defenses I-IV, directed against 625 

ILCS 5/8-101(c) which assert that said statute is unconstitutional, and the claims of 

unconstitutionality are hereby restated as follows:”

Paragraphs 8(a) through 8(d) then restate the identical constitutional arguments set forth in 

PTI’s affirmative defenses. The remaining paragraphs in the counterclaim allege:

“9. JESSE WHITE, ILLINOIS SECRETARY OF STATE, is an appropriate party 

in this case because he is charged with enforcing the Illinois Vehicle Code, particularly 

625 ILCS 5/8-101(c), which is relied upon by MARY TERRY CARMICHAEL, and 

which PTI alleges is unconstitutional.

10. No other motor carriers in Illinois, other than those who contract to transport 

employees in the course of their employment in vehicles designed to carry 15 or fewer 

passengers, are required to carry underinsured motorist insurance coverage in the 

amount of $250,000 per passenger.

11. There is no reasonable basis for concluding that those motor carriers who 

transport employees in the course of their employment in motor vehicles designed to 

carry 15 passengers or less, are more likely to have their vehicles struck by 

underinsured motorists, or that motor carriers, such as PTI, should be singled out by 

law and burdened with the unique obligation to secure $250,000 in underinsured 

motorist coverage, per passenger, to guard against such an eventuality.

12. According to the terms of 625 ILCS 5/8-101(c) and related penal statute, 625 

ILCS 5/8-116, PTI, and others similarly situated, could avoid the penal terms of the 

statute by owning and operating motor vehicles designed to carry 16 or fewer 

passengers, rather than 15 or fewer passengers, and there is no reasonable basis for 

making such a distinction in the penal reach of said statute. 
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13. House Transcript, 2005 Regular Session No. 28, which pertains to the passage 

of 625 ILCS 5/8-101(c), documents that the underinsured motorist insurance provision 

at issue was enacted at the behest of railroad labor unions which sought to burden 

contract motor carriers who transported their union membership with the unique

obligation to carry underinsured motorist insurance coverage in no less an amount than 

$250,000 per passenger. (See, EXHIBIT C attached hereto).

14. Plaintiff, MARY TERRY CARMICHAEL, is a railroad union member who has 

brought her declaratory judgment action against PTI, in an attempt to benefit from the 

special legislation that was enacted at her union’s behest, allegedly burdening PTI, and 

others similarly situated, with the obligation to obtain underinsured motorist insurance 

coverage in an amount no less than $250,000 per passenger.

15. That by virtue of the foregoing, there is a case or controversy existing between 

PTI, MARY TERRY CARMICHAEL and JESSE WHITE, ILLINOIS SECRETARY 

OF STATE, and according to the terms and provisions of 735 ILCS 5/2-701, this Court 

is vested with the power to declare the rights and liabilities of the parties hereto, as 

regards the constitutionality of 625 ILCS 5/8-101(c).

WHEREFORE, Defendant/Counter-Plaintiff, PROFESSIONAL 

TRANSPORTATION, INC. prays that 625 ILCS 5/8-101(c) which is cited as the basis 

for MARY TERRY CARMICHAEL’S cause of action against PROFESSIONAL 

TRANSPORTATION, INC., be declared unconstitutional, null and void; that the penal 

provision in 625 ILCS 5/8-116 be declared unconstitutional as applied to the provisions 

of 625 ILCS 5/8-101(c) here at issue; that MARY TERRY CARMICHAEL’S 

declaratory judgment action be dismissed with prejudice as to PTI; and that PTI be 

awarded such further relief as seems just and proper.”

¶ 31 It is clear that PTI’s counterclaim does not state an independent cause of action against 

plaintiff. Instead, it requests a declaratory judgment on the identical legal grounds PTI already 

asserted in its affirmative defenses. Furthermore, the counterclaim’s prayer for relief requests 

that the trial court declare the statutes forming the basis of plaintiff’s complaint 

unconstitutional and dismiss the complaint with prejudice. It is apparent from this language 

that the only purpose of the counterclaim is to defeat plaintiff’s claim against PTI based on 

allegations that the statute is unconstitutional, i.e., that “the claim asserted against defendant is 

barred by other affirmative matter avoiding the legal effect of or defeating the claim” (735 

ILCS 5/2-619(a)(9) (West 2010)). Since the counterclaim requests no affirmative relief other 

than a judicial declaration that the claim filed against PTI is barred, it is not an actual 

counterclaim. Moreover, because the purported counterclaim essentially duplicates the claims 

in PTI’s affirmative defenses without requesting affirmative relief, it is superfluous and carries 

no legal weight as an independent action against plaintiff. See Rayman, 735 F. Supp. at 853.

¶ 32 With respect to PTI’s claims against the Secretary of State, its counterclaim is also not a 

true counterclaim. PTI asserts that it must expend significant sums to procure the uninsured 

and underinsured motorist coverage required by section 8-101(c) of the Vehicle Code or risk 

the loss of its operating privileges. It contends that this establishes an independent cause of 

action against Secretary White separate from its cause of action against plaintiff. However, we 

reject any suggestion that this means PTI’s purported counterclaim is a true counterclaim. “A 

counterclaim is an action brought by a named party against another existing party to the action, 
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and is governed by section 2-608 of the Illinois Code of Civil Procedure [citation].” (Emphasis 

added.) People v. Fiorini, 143 Ill. 2d 318, 329 (1991). Secretary White was not an existing 

party to the action at the time PTI filed its counterclaim. PTI attempted to bring him into the 

action as a new party. Accordingly, PTI’s cause of action against Secretary White is not an 

actual counterclaim.4

¶ 33 PTI’s claim against the Secretary of State appears to be a claim for declaratory judgment 

based on the constitutionality of the statutes at issue in this case. PTI inserted its claim against 

Secretary White into a counterclaim in the present litigation. This was improper. Rather than 

bringing in Secretary White as a named party to its purported counterclaim, PTI should have 

followed the procedure in Illinois Supreme Court Rule 19 (eff. Sept. 1, 2006). Rule 19 requires 

that a litigant raising a constitutional challenge to a statute “shall serve an appropriate notice 

thereof on the Attorney General, State’s Attorney, municipal counsel or agency attorney, as 

the case may be.” Ill. S. Ct. R. 19(a) (eff. Sept. 1, 2006). The purpose of Rule 19 is to “afford 

the State, political subdivision, agency or officer, as the case may be, the opportunity, but not 

the obligation, to intervene in the cause or proceeding for the purpose of defending the law or 

regulation challenged.” Ill. S. Ct. R. 19(c) (eff. Sept. 1, 2006). Accordingly, at the time it filed 

its answer and affirmative defenses, PTI should have notified the Illinois Attorney General of 

its intention to challenge the constitutionality of sections 8-101(c) and 8-116 of the Vehicle 

Code. The Attorney General then would have had the option to intervene in the proceeding for 

the purpose of defending the statutes.

¶ 34 Although the deficiencies in the counterclaim are readily apparent, the parties and the lower 

courts nevertheless treated the counterclaim as though it were a complete, independent cause 

of action seeking affirmative relief against plaintiff and Secretary White. This was error that 

led to several procedural irregularities. For one, the appellate court’s decision was based solely 

on the legal grounds alleged in PTI’s motion to dismiss plaintiff’s complaint. As a result, PTI 

effectively attained appellate review of its motion to dismiss, even though the trial court’s July 

24, 2015, order denying that motion was neither final nor appealable. See Vasquez Gonzalez 

v. Union Health Service, Inc., 2018 IL 123025, ¶ 10 (an order denying a motion to dismiss is 

not a final and appealable order).5 This result illustrates why it is improper to treat PTI’s 

purported counterclaim as a true counterclaim. By filing a separate “counterclaim” that 

duplicated its affirmative defenses, PTI was rewarded with appeal rights to which it was 

otherwise not entitled. 

¶ 35 Another odd aspect to this case is that the appellate court declined to address the legal 

issues raised in the counterclaim. Instead, at PTI’s request, the appellate court held that 

plaintiff’s complaint “should have been dismissed” on the grounds that there was no private 

cause of action implied in the statute. 2018 IL App (1st) 170075, ¶ 2. Thus, the appellate court 

ruled on the merits of the complaint despite the fact that it had been voluntarily dismissed and 

plaintiff’s refiled complaint was pending in the trial court below. In so ruling, the appellate 

4

Nor can defendant’s cause of action against Secretary White be recharacterized as a third-party 

complaint because it does not seek indemnification or contribution for defendant’s liability to plaintiff. 

See 735 ILCS 5/2-406(b) (West 2010); People v. Brockman, 143 Ill. 2d 351, 364-65 (1991).

5

The December 13, 2016, voluntary dismissal did not render the July 24, 2015, order appealable 

because a denial of a motion to dismiss is not final in nature. See Saddle Signs, Inc. v. Adrian, 272 Ill. 

App. 3d 132, 140 (1995).
- 10 -

court essentially approved PTI’s strategy of treating the counterclaim as an independent action 

for purposes of jurisdiction, while treating it as an affirmative defense for purposes of deciding 

the merits. 

¶ 36 All of the procedural anomalies in this case stem from PTI’s improperly filed counterclaim. 

The purported counterclaim is not an actual counterclaim because it does not state an 

independent cause of action or request affirmative relief against counterdefendants. The only 

issues raised in the counterclaim—constitutional challenges to sections 8-101(c) and 8-116 of 

the Vehicle Code—were already before the trial court in the form of affirmative defenses. We 

therefore strike the counterclaim as duplicative of PTI’s affirmative defenses. We also vacate 

both the trial court’s order dismissing the counterclaim on the merits and the appellate court’s 

judgment on appeal from that order. Further, we remand to the trial court, where PTI is free to 

proceed on its affirmative defenses as if the counterclaim had never been filed.

¶ 37 We express no opinion on the constitutional or private right of action issues raised and 

argued by the parties. Although this court has supervisory authority to evaluate judgments of 

the lower courts (Ill. Const. 1970, art. VI, § 16), that authority should be reserved for 

exceptional circumstances. See People ex rel. Birkett v. Bakalis, 196 Ill. 2d 510, 515 (2001). 

In the case at bar, it would be inappropriate for us to exercise our supervisory authority at this 

stage in the proceedings. Had PTI not filed its improper counterclaim, it would not have had a 

right to appeal the order denying its motion to dismiss the complaint. As we stated earlier, an 

order denying a motion to dismiss is neither final nor appealable. Accordingly, if we were to 

decide the issues raised in PTI’s affirmative defenses, we would be rewarding PTI for 

circumventing the normal appellate process. See Bakalis, 196 Ill. 2d at 513 (supervisory orders 

are “disfavored” and to be used only if “the normal appellate process will not afford adequate 

relief”). 

¶ 38 CONCLUSION

¶ 39 For the foregoing reasons, the trial court’s January 30, 2015, order and the appellate court’s 

judgment are hereby vacated. The cause is remanded to the circuit court for further proceedings 

consistent with this opinion.

¶ 40 Judgments vacated. 

¶ 41 Cause remanded.