Docket N os. 105741 , 105745 c ons.



### IN THE SUPREME COURT OF THE STA TE OF IL LINOIS

ABIG AILE LEBRON, a Minor, et al. , Appelle es, v. GOTTLI EB MEM ORIA L HOS PITA L et al. , Appella nts.

Opinion filed February 4, 2010.

CHIEF JUSTICE

F ITZGERAL

D delivered the judgment of the court, with opinion. Justices Freeman, Kilbride and Burke concurred in the judgme nt and opinion. Justice Karmeier concurred in part a nd dissent

ed in par t, with opinion, joined by Justice Garman. Justice Thomas took no part in the decision.

OPINION

At issue in thi s appeal

is the constitutionality of section 2–1706.5 of the Code of

Civil Proce dure (Co de) (735 IL CS 5/2–1706. 5 (West 2008)), which was ado pted a s part of Public Act 94–677 (Act) (see Pub. Act 94–67 7, §330, e ff. Aug ust 25, 2005). Section 2–1706.5 sets certain caps on nonec onomic da

mages i nmedical malprac tice ca ses. Relying on this court’s decision in Best v. Taylor Machine Works
, 179 Ill. 2d 367 (1997), the circuit court of Cook County ruled that the statutory c aps v iolate the

separa tion of pow ers cla

use of the Illinois Constitution (Ill

. Const. 1970, art. II , §1) and declared the entire Act1 Plaintiffs also challenged the Act’s amend ment of section 2

–622 of the Code that ch anged

the cer tificate of m eri t requirements for m edical malpractice actions; the Act’s adoption of section

2–1704.5 that, inter al

ia , permi ts future medical ex

penses and costs of life c are to be paid through purchase of an annuity; the Act’s amendm ent of section 8–190 1 that

-2- invalid, pursuant to its inseverability provision (Pub. Act 94–677, §995, eff. August 25, 2005). For the rea sons discu ssed below, we af firm in pa rt and re verse in part the judgment of the circuit court, and remand this matter f or further procee dings.

BACKGROUND InNov emb er 2 006 , pl ain ti ffs Abi gai le Le bron (Abigaile), a minor, and her mother, Frances Lebron (Lebron), f iled a medical

ma lpra ctice and dec larator y ju dgment a ction in the

Cook County circuit court ag ainst def

endantsGottlieb Memorial Hospital, Roberto Levi-D’Ancona, M.D., and Florence Martinoz, R.N. According to the five-count

amended complaint, Lebron wa s under the care of Dr. Levi-D’Ancona

during her pregnanc

y. On October

31, 2005, Lebron

was admitted to Gottlieb, where Dr. Levi-D ’Anc ona de livered Abigai le by Caesare an section. Martinoz assisted in the delivery and provided the princ ipal nurs i n g care from the time of L ebron’s admission. In count s I throu gh IV, plaintiffs allege d that as the direct and proximate result of certain acts and omissions by de f endan ts, Abigai le sustaine d numerou s permanent injuri e s including, but not limitedto, “seve

re brai n in j ury, cer ebral palsy, c ognitive mental impairme nt, inability

to be fed normally

such that she must be fed by

a ga st ro no my t ub e, an d i na bi li ty to de velop normal neurological function.” Incount V, relevant to this appeal, plaintiffs sought a judicial determination

of their rights with respect to Public Act 94–677 and

a declar ation tha t certai n provisions of the Act, appli cable to plaintiff s’ cause of actio n, vi olate the Illi nois Cons titu tion . Alt hough plaintiffs challenged seve ral p rovisions of the Act, at issue

here is plaintiff s’ challenge to the caps on nonec onomic da mages s et forth i

n
sec tion 2–1706.5 of the Code. 1 Plaintiffs alleged that Abigaile “hasestablished an ev identiar y rule concer ning a health- care provider’ s admission

of liab ility; and the

Act’s a mend ment of s ection 8– 2501 that changed the exp ert witness stan

dards in medical m

alpractice actions. See Pub. Act 94

–677, §330, eff. August 25, 2005, amend ing 735 I LCS 5/2–622, 8–1901, 8–2501, and adding 735 ILCS 5 /2–1704.5.

2 Anticipating other cha

llenges to Public Act94–677, the pre sidin g judge of the La w Division of the C ook C ounty circuit court or

dered that all pending and subsequently

filed motions in any ca se ch allenging the constitu tionalit y of the A ct be cons oli dat ed be for e the same judge presiding

over plaintiffs’ case. Thus, Lebron v. Gottlieb bec ame the lead c ase. The record identifies two other cases pending in Cook County in whi ch a par

ty challenged

the constitutionality of the Act: Alexander v. Nacopoulos, No. 07– L–2207, and Zago v . Resurrection Medical Cen ter, No. 07–L–17 20.

-3- sustained disability, disfigurement, pa in and suffering

t o the extent th at d amage s for thos e injurie s will gr eatly exceed the applic able limitations on noneconomic dam ag es under Public Act 94–677.” Citing Best , plaintiffs alleged that the limitation on damages violates the separation of powers clause of the Illin ois Constitu

tion (I ll. Const. 1970, art. II , §1) by

permitting the General Assembly to supplant the judiciary’s

au th or it y in determin ing whe ther a r emittitur i s appropr iate under the facts of the case. Again citing to Best , plaintiffs further all eged t

hat the limitation on non-economic damages constitutes improper

special legisla tion (Ill. Const. 19 70, art. IV, §13) inthat “the

restric tions on n oneconomic damages gra nt limited liability specially and without just cause to a select group o f healt

h

care provi der[s].” Plaintiffs additionally alleg ed that the damages caps violate Abigaile’s right to a trial by jury (I ll. Const. 1970, art. I, §13), due process

(Ill. Const. 1970, art. I , §2), equal pr otection (Ill . Const. 1970, art. I, §2), and

a certain and

complete remedy

(Ill. Const. 1970, art. I, §12). 2 Plaintiffs filed a motionfor partial judgment on the pleadings as to count V, a

nd Gottlie

b and Mar

tinoz count

ered wit h a moti on for partial sum mar y jud gme nt on c oun t V. Dr. Le vi -D’Ancona moved for j udgment on the pleadings as to his counterclaim seek ing a declaration

that the challenged statutory provisions do not violate the Illinois Constitution . After briefing and oral argume nt, the circuit court granted plaintiffs’ motion for partial judgment on the pleading s,3 Amicus curiae briefs in suppor t of p laintiffs were received from the American Bar Association; Chica

go Bar Association and

Illinois State B ar Association; Citizen Action/I llinois and Illinois Alli ance for Retired Americans; Illin

ois AFL -CI O and t

he Chic ago F ederatio

n of La bor; I llinois Trial Lawyers Association ; National Association for the Advanc ement of Colored Peo ple and Coo k Cou

nty B ar Asso ciation; Profess ors Nei l Vidm ar, Tom Baker, Ralph

L. Brill, M a rtha Chamallas, Stephen Daniels, Thom as A. Eaton, Theodore Eisenbe rg, Neal Feig enson, Lucind a M. Fin ley, M arc Galante r, Valer ie P. Han s, Mi chae l Hei se, E dwar d J. Kionka, Thomas H. Koeni g, Herb ert M . Kritzer, David I. Lev ine, Nancy S. Marder, Joanne Martin, Frank M. McClellan, Deborah Jones Merritt, Philip G. Peters, Jr., James T. Richardson, Charles Silver, and Richard W. W right; an d the Women ’s Bar Association of I llinois. Amicus curiae

briefs in suppo rt of

-4- and denied Dr. Levi-D’ Ancona ’s m otion for judgment on the plead ings as to his counterclaim to the extent it sought a declaration that the dama

ges ca ps are c onsistent w

ith the sep arati o n of powers clause. The circ

uit court d

id not expressly deny

the motion for partial

summa ry judg ment a s to co

unt V f iled by G ottli eb an

d Mar tinoz. The circuit court determined that the statutory cap o n
noneconomic damages in section 2–1706.5, like the statutory damages cap at issue in Best , operat es as a le gislativ e remittit ur in violation of the se

paration of powe

rs cla u se of the

Illinois Constitution (I ll. Const . 1970, art. II , §1). Based on the Act’s insev erabi lity

provision (Pub. Act 94–677, §995, eff. August 25, 2005), the circuit court invalidated the Act in its entirety . The cir

cuit court decline d to consider plaintiffs’ other constitutional challenges to the Act. T

he circ uit court l ater ame

nd ed its order to add the findi ngs require d by

Supreme C ourt Rule

18 (210 I ll. 2d R. 18) and,

onthe motion of Gottlieb and Martinoz, made a

Rule 304(a) finding of appealability (210 Ill. 2d R. 304(a)). Pursuant to Supreme Court Rule 302(a ) (210 Ill. 2d R. 302(a)), Gottlieb and

Martinoz, and Dr. Levi-D’Anc ona, filed ap peals dir ectly with this c ourt. We c onsolidated these appeals for review, and allowed the Illinois Attorney

General to intervene to def end th e constituti onality

of the Ac t. See 210 Ill. 2d R. 19. We also allowed

numerous individuals and organizations to filebriefs amicus curiae

. See 210 Ill. 2d R. 345. 3defenda nts were received fro m Advo cate Health and Hospitals Corporation; American Medical Associ ation and Illin ois State Medical Society ; the Cook County State’s Attorn ey; IllinoisHospital Association, A merican Hospital Association, Illinois Catholic Health Association, and Illinois R ural Health Association; and

Loyo la Univ

ersity Medical Center and Loyola U

nivers ity Physician Founda

tion.

-5-

ANA LYSIS I This casecomes to us following the grant of plaintiffs’ motion for judgment on the pleadings. See 735 ILCS 5/2–615(e) (West 2008).

“ ‘[A] motion for judgmen t on the pleadings is like a motion for summary judgment limited to the pleadings.’ ” Employers Insurance of Waus au v. Ehlc o Liquidatin g Trust , 186 I ll . 2d 127, 138 (1999), quoting 3 R. Mi chael, Illinois Practice §27.2, at 494 (1989) , citing Tompkins v. France , 21 Ill. App. 2d 227 (1959). Judgment on the plead ings is proper if the pleadings disclose no genu ine is sue of material fact

and that the movant

is entitled to judgment as a matter of law. M.A.K. v. Rush-Presbyterian-St. Luke’s Medical Center , 198 Ill. 2d 249, 255 (2001); Employe rs Insurance of Wausau , 186 Ill. 2d at 13 8. W e revie

w the gr ant of jud gment on the plea dings de novo

. Gillen v. State Farm Mutual Automobile Insurance Co. , 215 I ll. 2d 381, 385 (2005). De novo review is also appropriate because the c ircuit court ’ s grant of judgment on the

pleading s rests on

it s determination that section2–1706.5 o f the Code violate s the Illinois Constitution. Whether a statute is unconstit

utional is a

question of law subject to de

novo review. People v. Johnson
, 225 Ill. 2d 573, 584 (2007). We are mindful that section 2–1796.5, like every statute, enjoy s astrong presumptionof

constituti onality

and that t he burde n of rebu tting this presumptionrests wi th the party cha llenging the statute–here, plaintiff s. In re Marriage of Miller , 227 Ill. 2d 185, 195 ( 2007); In re Estate of J

olliff , 199 Ill. 2d 510, 517 (2002). The circuit c ourt rule d th at section 2–1706.5 is unconstitutional both on its fac e and as a

pplied to plaintiff

s. A statut

e is fac ially invalid only if no set of circ umstance s exists unde

r which the statute would be valid. Napleton v

. Village o f Hinsdale
, 229 Ill. 2d

296, 306-6- (2008). Therefore, the circuit court’s ruling t hat the sta tute is fa cially invalid negate s any

notion tha

t the statu te could b e validly

applied t o theseplaintiffs an d t he co ur t’ s “ as ap pl ie d” ru li ng wa s u nn ec es sa ry. Moreover, w hen ther e has been no evidentiary hearing and no findi ngs of fa ct, the constitutional challenge must be facial. In re Parentage of John M. , 212 I ll. 2d 253, 2 68 (2004) , cit ing Reno v. Flores
, 507 U.S. 292, 300-01, 123 L. Ed. 2d 1, 15 -16, 113 S. Ct. 1439, 1446 (199 3). Acc ordingl y, we reverse the ci

r c uit court’s “as applied” ruling and limit our review to whether section 2– 1706.5 is facially invalid. See John M. , 212 Ill. 2d at 268. We turn now to the statute, itself. Section 2– 1706.5 pr

ovides in r

elevant part: “(a) Inany

medical malprac tice ac tion or wr ongful d eath actionbased

on medical malpractice in which economic and

non-economic damages may be awarded, the fo llow ing st an da rd s s ha ll ap pl y: (1) In a case of a

n award against a hospital and its personnel or hospital affiliates, as defined in Section 10.8 of the Hospital Licensing Act, the total a mount of no n

economic damages shall not exceed $1,000,000 awarded to all plaintiffs in any civil action arising out of the care. (2) In a case of an award ag ainst a physician and th e physician’sbusinessor corporate entity and personnel or healthcare professional, the total amount of noneconomic damages shall not exceed $500,000 awarde d to all plaintiffs in any civil action ar ising out of the care. (3) I n awarding damages in a medical malpractice
case, the finder of fact shall render verdict s with a spe cific award of damag es for e conomic l oss, if any, and a specific

aw ar d o f d am ag es fo r n on -e co no mi c l os s, if an y. The trier of fact shall not be informed of the provisions of items (1) and (2) of this subsection (a).” 735 ILCS 5/2–1706.5 (West 2008). The limitation on noneconomic damages set fort h in section 2–1706.5 is one of sev e ral “significant reforms” to the civil justice system the General Assembly

adopted in response to a “healt h-care crisis” in this state. Pub. Act 94–677, §101(4), eff. Au gust 25, 2005.-7- According

to the legisla

t ive findings set forth in the Act, the rising cost of medical liability insurance increases the financial burdenson physiciansand hospit

als and is be lieved to have contributed to a redu ctionof available medical care in portions of I llinois. Pub . Ac t 94–677, §§101(1), (2), eff. August 25, 2005. The Gene ral Asse mbly determined:

“[T]he cur

rentmedical malpractice situation requires reforms that enhance the State’s oversight of phy sicians and ability to discipli

ne physicians, that in crease the State’s oversight of medical liability insurance carr iers, that reduce the number

of nonmeritorious healing art malpractice ac tions, that limit non-economic damages in healing ar t ma lpractice actions, th at en co ur ag e p hys icia ns to provide voluntary services at

free medicalclinics, that encourage phy sicians and hospitals t o continue

providing

health c are ser

vices in I llinois, and that enc ourage physicians to practice in medical care

s horta ge areas. ” Pub. Act 94–677, §1 01(5), e ff. Aug ust 25 , 2005. Inaddition to the caps on

noneconomic damages, the refor ms adopted by the legislature included change s to the Illinois Insura nce Code (Pub. Act 94–677, §3 10, eff. August 25, 2005), the Medical Practice Act of 1987 (Pub. Act 94–677, §315, eff. August 25, 2005), and the Good Samaritan Act

(Pub. Act 94–677, §340, eff. August 25, 2005),

as well as othe r chang es t o the Code (Pub. Act 94–677, §330, eff. August 25, 2005), an d new leg

islation kn

own as the

“Sorry Works! Pilot Progra

m Act” (Pu

b. Act 94–

677, art. 4, eff. A

ugust 25, 2005). We need not delve into the detailsof these reforms because the foc us of this appe al is one p articula r refor m: the limita

tion on none conomic damages codified in section 2–1706.5. The circuit court invalidated the statute for the sole rea son that, pursuant to our decision in Best , the limita tion on none conomic damages in section

2–1706.5 v

iolates the separ

ation of p owers c lause of the Illinois Constitution (Ill. Const. 1970, art. II, §1). Defend ants arg ue that the statute at issue in Best is distinguishable fr om th e present statute a

nd that the

circuit court’s ruling represents an unjustified

expansion of Best . Defendants maintain that the damages provision insec tion 2–1706.5 constitutes a valid exercise of the General Assembly’s police powe r in resp onse to a public threat, as-8- reflected inthe leg islative f

indings, and that under our precedents, the statute does not offend separation of p owers principles. Plaintiffs continue to argue that Best is contro lling an

d that nei ther thiscourt’s preced ents, nor the legislative findings on which defendants rely , can save the statute. We consider the Best decision in detail. In Best , this court considere d constitu tional ch alleng es to several provisions of Public Act 89

– 7, commonly refe rred to as the Tort Reform Act of 1995 or the Civil Justice Ref orm Amen dments of 1995. Pub. Act 89–7, eff. March 9, 1995. Among the challen ged provisions was a $500,000 cap on noneconomic damage s. C od ified at section 2–1115.1(a) of the Code, this provision stated:

“In all common law, statutory or other actions that seek damag es on acco

unt of dea

th, bodily

injury, or phy

si ca l damage to property

based on neglig ence, or product liability based on any theory

or doctrine, recov ery

of non-e conomic damages shall be limited to $500,000 per plaintiff. There shall be no recovery

for hedon ic damag es.” 735 IL CS 5/2–1115.1(a) (West 1996). The statute defined

“non-ec onomic da

mages” as “damages which are intangible, including but not limited to damages for pain a nd

s uffer ing, disability, disfigurement, loss of consor tium, and loss of society.” 735 IL CS 5/2–1115.2(b) (West 1996). The statute defined “econo mic damages,” which were not capped, as “all damag es which

are tangibl e, such a s damag es for pa st and future medical e

xpenses, loss of income or earnings and ot her p roperty

loss.” 735 IL CS 5/2–1115.2(a) (West

1996). The sum of noneconomi c and economic damages c onstituted “compens ato ry da mag es. ” 73 5 ILC S 5/2–1115.2(c) (West 1996 ). Thus, d amage s which we

re inten ded to make a person

whole were limited by se ction 2–1115.1. Best , 179 I ll. 2d at 384. Before consider

ing the s pecific constituti o nal ch alleng es to this provision, we noted

that the c ap on none conomi c d amages was supp o rted by severa

l legislative findings which, as we later

reco gnized, were entitled to “great defe rence.” Best , 179 I ll. 2d a t 389. Thes e finding s declar ed that: “(1) limiting noneconomic damages will improve health care inrural Illinois, (2) m ore than 20 states limit nonec onomic-9- damage s, (3) the c ost of hea lth care has decr eased in those states, (4) noneconomic losses have no monetary dimension, and no objective criteria or

jurisprudence exists for assessing

or reviewing

noneconomic damages awards, ( 5) suchawards

are highly er

ratic and depend on

subjective preferences of the trier of fact, ( 6) highl

y erratic noneconomic damage s awards subvert the credi bility of such awards a nd undercut the deterrent function of

tort law, (7) such awards must be limited to provide consistency a

nd stability for

all parti es and soc iety and ( 8) *** limiting

nonecon omic dama

ges wa s the most effective step toward

legislative reform

of tort la w becau se it reduces li tiga tion costs and expedites settlement.” Best , 179 Ill. 2d at 385. We further noted that the preamble to P ubli c Act 89–7 identified several “purposes” of the damages ca p: re ducin g t he cost of

health
care, increa sing ac cessibili ty to health care, promoting

consiste ncy in awards
, reesta

blis hing the cre dibility

of the ci

vil justice

sys tem,

es tabli shing parameters for noneconomic damag es, protecting the

e c onomic health of the state by decreasing systemic costs, and ensuring the affordability of insurance. Best , 179 Ill. 2d at 385. Proceeding

fr om the premise that our task was to determine the constituti onality

of the sta tute, and not its wisd

om ( Best , 179 I ll. 2d at 390), we first considere d the plaintiffs ’ speci al legi slati on cha llenge (Ill

. Const. 1970, art. IV, §13). We observed that the p u rpose of the special legisla

tion clau se “is top revent arbitrary legislative classificat ions t hat discr

iminate in

favor of a selec t group w

ithout a sound, reasonable basis.” Bes t , 17 9 Il l. 2d at 391. The plaintiffs argued that the st

atute impe

rmis si bly penalize d the most se

verely injured persons whose award for

noneconomic dama

ges wou ld likely exceed $500,000, but for th e statutor y c ap, and that the sta

tute arbitra rily benefitted certain tortfeasorsby relieving them of lia

bility for fu ll y c ompe nsating injured persons. The plaintiffs relied on Wright v. Centra l Du Page H

ospit al Ass ’n , 63 Ill. 2d 313 (1976) (holding that a $500,000 limit on compensatory damages in medical malpractice actions was arbitrary and violated the special legislation clause), Grace v

. Howlett
, 51 Ill . 2d 478 (1 972) (hol ding tha t a statute that limited recovery

for certain automobile accident victims was an arbitrary and unre asonable

classifi cation in

violati on of t he special-10- legislation

clause), and Grasse v. Dealer’s Transport Co. , 412 Ill. 179 (1952) (holding that a workers’ compensation provision violated the special legislation

clause by c

reating unreasonableclassifi cations in whichthe plaintiff’s ability to recove r co mplete compensation was determined by f

ortuitous events). We agreed with the plai n tiffs that under Wright
, Grace and Grasse the automatic $500,000 limit on noneconomic damages was arbitrary and violated the special legislation clause. Best , 179 Ill. 2d at 406. Altho

ugh ag reeing with the de fendant s that none conomi c injuries are difficul

t to assess , we dete

rmined tha

t such dif ficulty was notalleviated by

impo sing an a

rbitrar y da mages l imitation in

all
cases, without regard to the facts or circumstanc es. Best , 179 Ill. 2d at 4 06. I ndeed, w e deter

mined tha

t the dama

ges limit ation ac tually undermined

the statut

e’s state d goal o f provid ing co nsistency and rationa lity to the civil justice system. Best , 179 I ll. 2d at 40 6. We also rejected the defendants’ argument that the leg islature ’s intere st in

r e ducing the systemic co sts of tort liability was suff icient to overcome the plaintiffs ’ s pecial legislation challenge, noting that the entire burden of any cost savi ngs woul d impermis sibly rest on one class of injured plaintiffs. Best , 179 Ill. 2d at 407. We continued our

analysis of section 2–1115.1 by considering the plaintiff s’ argument that section 2–1115.1 also v iolated the separation of powers cla

use (Ill. Const. 1970, art. II, §1). The plaintiffs arg ued that th e s ta tu te in va de d t he pr ov in ce of th e j ud ic ia ry to asses s, on a case-by- casebasis, wh ether a jury ’s awar

d is excessive, by imposing

a one-si ze-fits- all legislat ive remittitur. The defendants countered that the statutory ca

p s im pl y set an outer parameter by which subjective damages were lim

ited and d

id not displ ace traditional judicial function s. We explained that the purpose of the separation of powers clause

“ ‘is to ensure that the whole power of two or more bra nches of government

shall not reside in the same hands.’ ” Best , 179 Ill. 2d at 410, quot ing People v. Walker , 119 Ill. 2d 465, 473 (1988). “ Each branch of gove rnment has its own unique sphere of authority that cannot be exercised by a

nother branch.” Best , 179 I ll. 2d at 410. Thus, “the legislature is prohibited from enacting laws that u ndul y infringe uponthe inherent powers of judges.” Best , 179 I ll. 2d at 4 11. Th ough recognizing

that the se

paration betwee

n th e three branches of-11- government

is “not absolute and unyielding ” and may “overlap,” we emphasized

that the determination of whet her a statute violates the separation

of powers clause rests with the judiciary

. Best , 179 I ll. 2d at 411. We also reviewed the doctrine of remittitur, which has long been recognized

as a part of Illinois law. Best , 179 Ill. 2d at 412. We noted that, fo r over a century , application of this doctrine has been a traditional and inherent power of the judicial branch, to be exercised inappropriate circumstances to correct an excessive jury verdict, and that its applic ation pre sents a question of law for the court. Best , 179 Ill. 2d at 411- 12. Where

a jury verdict “ ‘falls outside the range of

fair and reasona ble compensation or results from passion or prejudice, or if it is so large that it shocks the judicial conscience,’ ” a court has a duty to correct the verdict by

ordering a remittitur, with the plaintiff’s consent. Best , 179 Ill. 2d at 412, quot ing Richardson v. Chapman
, 175 Ill. 2d 98, 113 (1997). I f consent is not given, the court has a duty to order a new trial. Bes t , 179 Ill. 2d at 413. Whether a remittitur should be ordered

is necessarily c onsidered on a case -by-case b asis. That is, the court must carefully examine the particular evidence and circumstances of the case to determine whether it must override the jury’s verdict. Best , 179 Ill. 2d at 413. In Best , we conc luded tha t, althoug h the legislature

may limit certain types of da

m ages, such as damage s recoverable in statutory

causes of action (

Best , 179 Ill. 2d

at 415), the limitation on damages in section 2–1115.1 violated the separation of powers clause:

“[S]ection 2–1115.1 undercuts the power, and obligation, of the judiciary to re duce e xcessive verdicts. In our view, secti on2–1115.1 f

unctions a s a ‘legislative r emittitu r.’ Unlike the traditional remittitur power of th e j ud ic ia ry, the legislative remittitur of section 2–1115.1 disregards the jury’s careful deliberative process

in deter mining da

mages t hat will fa

irly compensa te injured plaintiffs who have proven their causes of action. The cap on damagesis mandatory and oper ates who lly apart from the specific circumstances of a particular plaintiff’s

noneconomic injuries. Th er efore, section 2 –1115.1 un

duly encroaches upon the fundament ally judicial prerog ative of determining whether a jury ’s as sessment o f damag es is-12- excessive within the meaning of the law.” Best , 179 Ill. 2d at 413-14. We also concluded that section 2–1 115. 1 unduly expanded the remittitur doctrine by

forci ng a suc cessfu l plai ntiff to for go part of the jury award, “in clear

violation of

the well-settled principle that a trial court does not have authority to re duce a damages awar dby entry of

a remittitur if the plaintiff objects or does not consent.” Best , 179 I ll. 2d at 414. After considering constitutional challenges to ot her po rtions of Public Act 89–7 and

invalidating severalprovision s ( Best , 179 Ill. 2d at 459), we ultimately

held the a

ct v oid in i ts en ti re ty ( Best , 179 I ll. 2d at 467). We concluded that what remained of Public Act 89–7 could not be independently e

nforced. Best , 179 Ill. 2d

at 467. In the

course of our analy sis, we no ted that the Gener al Assemb ly considered

the cap on noneconomic damages e ssentia l to t he tort reform scheme. Best , 179 Ill. 2d at 465. Before turning to the parties’ arguments regardi ng the applica bility of Best to the present

litigati on, we consider de fendant s’

con tention that the separation of powers analy sis in Best

wa s unnecessary

to the d isposition of that case and is therefore dicta enti tled to lit tle weight. See Best , 179 Ill. 2d at 471 (Bilandic, J., speci ally concurring) (declining to join the sepa ration of pow er s analy sis because

it was “w holly unnecessary

and cons titutes dicta ”); Best 179 Ill. 2d at

481 (Miller, J., concurring in part and dissenting in part) (stating that the sepa ration of powers a

naly sis “is ent

irely

un ne ce ss ar y, given the majority ’s prior hol ding that the same measure is invalid special legislation”). We agree that the separation of powers analy sis in Best was no t necessary to our dec isio n. The court had already determined that section2–1115. 1 violated the special legislation clause; a further reason for finding the statute unconstitutional was not re quire d. We disagree, however, that our opinion on this matter is mere dicta entitled to little weight. As this court has explained, dictum is of two typ es: obiter dictum and judic ial dictum

. People v. Williams , 204 I ll. 2d 191, 206 (2003). “ Obiter

dictum ,” freq

uently refer red to as simply

“ dictum ,” is a r emark or opinion that a court uttered as an aside. Exelon Corp. v. Department of Revenue , 234 Ill. 2d 266, 277 (2009); Cates v. Cates , 156 Ill. 2d 76, 80 (199 3). Obiter dictum is not-13- essential to the o utc ome of the case, is not an integral part of the opinion, and is generally

not binding authority or pre cedent within the
stare decisis rule. Exelo n , 23 4 Ill. 2d at 277. “I n contrast, ‘an expression of opinion upon a point in a case argued by c ounsel and delibera tely

passed up on by the court , though not essential to the disposition of

the cause, if dictum , is a judic ial dictum . [Citation.] *** [A] judicial dictum is entitled to much weight, and should be followed unless found to be erroneous.’ (Emphasis added.)” Exelon
, 234 Ill. 2d a t 277 -78, q uoti ng Cates , 156 Ill. 2d at 80. See also Woods

v. Interstate Realty Co. , 337 U.S. 535, 537, 69 S. Ct. 1235, 1237, 93 L. Ed. 1524, 1526 (1949) (“where a decision re sts on two or more grounds, none can be releg ated to the category of obiter dictum ”). Alth ough the separation of powers disc ussion in Best was not essential to our disposition, the issue w as bri efed by the parties and “delibe rately passed up on” by

this cour t. O ur analysis, summarized above, examined the nature of the separation of powers doctrine and the interplay

between the three branches of government; the contours of the remit titur doct rine and its place in Ill inois law; and the effect of the sta tut ory cap on the

trial court’s inherent authority to correct excessive verdict s. Furthe r, our conclusion was expres sed as a hold ing. Best , 179 I ll. 2d at 415; see also Unzicker v. Kraft Food Ingredients Corp. , 203 I ll. 2d 64, 93 (2002) (stating that in Best , we “held” that s ection 2–1115.1 of the Code was an unconstitutional legislative remittitur). Our opinion on this matter can hard ly be considered

an “aside” and, if a dictum , is a ju di cial dictum

. Ac co rd in gl y, it is entitled to m uch we ight and should be followed unless found to be erroneous. See Exelon , 234 Ill. 2d at 278. Defend ants do not

argue that the se

paration of powe

rs analy sis in Best is necessarily e

rron eous. Ra

ther, they ar

gue that the statute at issue he re, section 2

–1706.5, i s disting

uishable from the s tatute invalidated

in Best , section2–1115.1. Defend ants maintain t

hat while sect ion 2–1115.1 was part of a broad-based eff ort to reduc e systemwide

litigationcosts, se ction 2–17 06.5 is narrowly ta ilored to address a specif

ic issue: t

he healt h-care crisis. B ased on th

is distinction, defenda

nts arg ue that Best

is not controlling and section 2– 17 06 .5 do es no t u nd ul y en cr oa ch up on th e j ud ic ia ry. We agree with defendants that the scope of the statute a

t issue in Best was much broader than t he statute we examine here. The-14- damages cap in section 2–1115.1 applied to all actions, whether based

onthe c ommon law or statute, that sought damages “on a ccount of death, bodily injury , or physical dama ge to propert

y ba se d on negligence, or product liability based on any theory or doctrine.” 735 IL CS 5/2–1115.1(a) ( West 1996). I n contra st, the da

mages c ap in section2–1706.5 applies to “any medic al malpractice act ion or wrongful death action based on medi cal mal practic e.” 735 I LCS 5/2–1706.5(a) (West 2008). Notwithstanding this difference, th e encroachment

upon the inherent

power of the judiciary

is the same in the instant case as it was in Best

. Under section 2–1706.5, the court is required to override the jury’sdeliberative process and reduce any noneconomic dama

ges in

excess of the statutory ca p, irrespective of the particular fac ts and circumst ances, and without the plaintiff’s consent. Section 2–1706.5 thus violates the separation of powers c lause be cause it “unduly

en croaches upon the fundamentally judicial pr erogative o f determin in g whether a jury ’s assessment of damages is excessive within the meaning of the law.” Best , 179 I ll. 2d at 41 4. Secti o n 2–1706.5, like sec tio n 2–1115.1, effects an unconstitutional legislative remittitur. The fact that the legislative remittitur operates inperhaps fewer cases under sect ion 2 –1706.5 than it would have under section 2–1115.1 does not extinguish the constitutional violation. The At to rn ey G ene ral argues, however, that the da mages cap at issue in Best

was found by this court to be “ar bitrary” a nd “not rationa lly related to a legitimate government interest” ( Best , 179 I ll. 2d at 408) , where as the pr

esent da mages c ap is rati onally

related to the Act’s narrow

aim of ad

dressing the mountin

g crisi s in acce ss to health care by stemming

the cost of malpractice insurance. See Pub. Act 94–677, §101(4), eff. August 25, 2005 (identify ing the limitation

onnoneconomic damages as one of the signific ant ref

orms to the civil justice system designe d to combat the he alt h-care crisis). This argument conflat es our spe cial legislation a naly sis in Bes t

and our separation of powers analy sis in that case. In B es t , we first considered the plaintiffs’ special legislation chall enge and determined that the rational basis test was appropriate. Best , 179 Ill. 2d at 393. Under this test, “ ‘a cour t must determine whether the statut ory classifi cation is r

ationally related to a leg itimate-15- State interest.’ ” Best , 179 Ill. 2d at 393, quot ing In re Petition of the Village of VernonHills , 168 Ill. 2d 117, 123 ( 1995). We u ltimately concluded

that the d amage s cap wa s arbitra

ry and was n

ot rationa lly related to a legitimate state interest. Best , 179 Ill. 2d at 40 6-08 . We d id not, however, incorporate that holding, rely upon it, or even reference it in oursepara

tion of pow ers disc

ussion, nor

was it necessary to do so. Best , 179 Ill. 2d at 410-15. The separation of powers clause prohibits one branch of government

from exer

cising “ powers properly

belonging to another.” Ill. Const. 1970 , art. II, §1. Thus, the inquiry under the se paration of powers clause i s not whether the da mages c ap is rationa

lly related to

a legitima te gover nment inte

rest but, rather, whether the legislature, throu gh its ad opti on of t he dam age s cap , is exercising powers properl y belonging to the judiciar y. I n other w ords, doe s the statu te unduly encroach on the judiciary ’s “sphere of authority ” ( Allegis Realty Investo rs v. Novak
, 223 I ll. 2d 318, 3 34 (2006) ; Best , 179 I ll. 2d at 410))or “im

pede t he court s in the pe rforman ce of the ir function s” (

Best , 179 I ll. 2d at 443) ? The rational basis te st is not part of that legal determination. Numerou s cases f rom this co

urt illustr ate the distinction between a separation of powers analy sis and a

special legislation

analysis. See, e.g. , In re Estate of Jo l liff , 199 Ill. 2d 510 (2002); Burger

v. Lutheran General Hospital
, 198 Ill. 2d 21 (2001); DeLuna v. St. Elizabeth’s Hospital , 147 I ll. 2d 57 (199 2); Bernier v. Burris , 113 Ill. 2d 219 (1986). For similar

reasons , we reject defendants’ arg ument that section 2–1706.5 should

not be deemed

invalid be cause, u

nlike the statute in Best which burdened one class of plaintiff s ( Best , 179 Ill. 2d

at 407), the Act h ere ba lances the benefits and burdens of resolving the health-care crisis among insurers, health-care pr oviders and patie

nts. This argument , like the one before it, confuses our separa tion of powers and special legislation analyses. Our observation in Best regarding the burden of

any cost saving s effected by the damages cap

w as made i n the

cour se of

our s peci al le gisl ation

discu ssion . We stated: “[W]eare un abl e to discern any connection between the automatic reduction of one ty

pe of compensatory

damages awarded to one clas s of injured plaintiffs and a savings in the systemwide

cos ts of litiga

tion. Even

assuming

that a-16- systemwide

savings in costs were achieved b y the cap, the prohibition agai ns t special legislation does not permit the entire burden of the anticipat ed cost savings to rest on one class of injure d plaintif

fs. [Ci tation.] We therefore reject defenda nts’ sys temic cos ts rationa le as a ba sis for

upholding section2–1115.1.” (Emphasis added.) Best , 179 I ll. 2d at 407. We did not, i n the context of examining the plaintiffs’ separation of powers a

rgumen t, conside

r wheth er the statute burdened a particular group. See Best , 179 Ill. 2d at 410-16. Consideration of that issue was unnecessary

because, as explained a

bove, a separation of powers analy

sis asks whether th e statute unduly infringe s upon the judiciary’s

sphere of authority . Thus, a proper separ ation of powers analy sis of section 2–1706.5 does not conside r whether the Act balances the benefits and burdens of resolving the health- care crisis

or burdens a

particular group. The intrusion on the judicial authority effected by section 2–1706. 5 is no less simply because other provisions of

the Ac t may impose burdens on par ties other than plaintiff s. In a related

vein, the

Attorney

Genera l posits tha

t sectio n 2–1706.5 is but one part of a massive “multidimensional” respon s e to the health- care crisis whic h requir es all inte rested p arties–i

nsurers , medical profess ionals and health-careconsumers–to make tradeoffs and sacrifice s. Accor ding t o the A ttorn ey General, the Ac t, th rough

a number of

interrelated measures, constitutes an equitable means of ensuringthat everyone

who stand s to benef

it from a resolution of the health-care crisis contributes to its resolution. The Attorney General cites to the Work

ers’ Comp ensation

Act (820 IL CS 305/1 et seq. (West 2008)) as an example of a multidimensional ex ercise of the General As se mb ly’ s p ol ic e p ow er wh ic h, al th ou gh mo di fyi ng t he

commonlaw, h as been uphel d by this court in a lo ng l ine of cas es. See Duley v. Caterpillar Tractor Co. , 44 Ill. 2 d 15 (1969 ); Moushon

v. National Garages, Inc.
, 9 Ill. 2d 407 (19 56); Grand Trunk W estern R y. Co. v. Industrial Comm’n , 291 I ll. 167 (19 19); Matthiessen & Hegeler Zinc Co. v. Industria l Board , 284 Ill. 378 (1918). Th e Attorney General argues that section 2–1706.1 , li ke the Wor kers’ Compensation Act, constitutes a leg iti mate exercise of the General Assembly’s police powe

r.-17- Plaintiffs dispute the Attorney Gene ral’s contention that the Act

r equires all stakeholders to make a sacrifice. Plaintiffs arg ue that hospitals gain enormous benefits under the Act, but are not required to give any

thing in return. This aside, plaintiffs further respond that the multidimensional n ature of a legislative enactment does not determine wh eth er the enactment is constitutional, and that the statutes at issue in Grasse , Wright , and B est were de emed inva lid

even though each

statute was part

of a multid

imensiona

l enactme nt. According

to plaintiffs, whether the Act is multidimensional is of no constituti onal sig

nificance. We ag

ree with plaintiff s. In Grasse , we held unconstitutional a provision

of the Wor

kers’ Compe nsat ion Act–the v ery legisla tion the At

torney Genera l posits is an ex ample of a multidimensional enactment. Grasse , 412 Ill. at 200. In Wright , we held

unconstit

utional a statu tory damag es cap, withoutregard to the fact that it was butone provision of what may be called a multidi mensional act rev ising the law in re lation to medical malpractice. Wright , 63 Ill. 2d at 318, 329-30. Similarly , in Best , we held a damages cap unc onstitutional, notwithstanding tha t it was but one provision of an “integrated ‘re form packag e.’ ” Best , 179 Ill. 2d at 465. As these cases demonstra te, though nothing precludes the General Assembly from adopt ing a so-called “multidim ens ional”

response to a threat to the public welfare, the multidimensional character of a statute does not preclude a finding by this cour t that the s tatute is u

nconstitu tional. Defend ants further argue that our dec ision in Unzicke r v. Kraft Food Ingredients Corp. , 2 03 Ill. 2d 64 (2002), which rejected a separation

of powers challenge based on Best , t eaches that the separation

of powers c lause doe s not prev ent the Ge neral As sembly from dictatingwhen a defendant can be liable for the full amount

of

a jur y ’s verdict and that application of Unzicker to the pre sent cas e demonstrates that section 2–1706.5 does not operate as a legislative remittitur. Plaintiffs counter that if Unzicker

has any re levance here, it supports

the circ uit court’ s judgme

nt. In Unzicker

we considered the constitutionality of section 2–1117 of the Cod

e (735 I LCS 5/2 –1117 (Wes t1994)), which modified the

commonlaw rule of joint and several liability . Under the com mon law, a plaintiff could recover compensation for the full amoun

t of his

or her injury from any

responsible defendant. Unzicker , 203 Ill. 2d at-18- 70. Pursuant to section 2–1117, however, any tortfeasor who s e percen tage of fault the trier of fa ct determined to be “less than 25% of the total fault attributable to the plaintiff, the d efendants sued by the plaintiff, and any third pa rty defe ndant who could have been sued by the plaintiff, shall be severally liabl e” for the plaintiff’s nonmedical damages. 735 ILCS 5/2–1117 ( We st 1994). Relying on the separation of powers analy sis in Best , the plaintiffs argued that the change in the common law rule of joint and several liability amounted to an unconstitutional legislative remittitur. We r ej ected th is argument, noting that, unlike the statute in Best , section 2–1117 did notset a ca

p on damages. Unzicker , 203 Ill. 2d at 94. Rather, section 2–1117 merely dete

rmined “when a defendant can be held liable for the full amount of a jury’s ve rdict and when a

defenda nt is liable

only inan amount equal to hi s or he r perce ntage of fault.” Unzicker , 203 Ill. 2d at 94. Defend ants contend t

hat sect ion 2–1706 .5, like th e statute in Unzicker
, does not

limit a plaintiff’s recovery

and merely pr

ovides that cer tain def endants can be h eld liable

for none conomic

damages only up to a p arti cula

r amount. W e disagree with defendants’ re ading of the statut e. By its plain ter

ms, section 2–1706.5 limits a plaintiff’s

noneconomic damages. Section 2–17 06. 5 states, with respect to an award aga ins t a hospital and its personnel or hospital affiliates, that “th e total amount of non-economic damages shall not excee d $1,000,000.” 735 IL CS 5/2–1706.5(a)(1) (West 2008). Section 2–1706.5 similarly states, with respect to an a wa rd aga inst a physician and the phy sic ian’s business or corporate entity and personnel or health-careprofessional, that“the total amount of none conomic damages shall not exceed $500,000.” 735 I LC S 5/2–1706.5(a)(2) (West

2008). Unlike the statute in Unzicker
, which required the court to enter j udgmen t in conformity with the jury ’s assessment

of fault where the defendant was minimally responsible, the statute here requires the court to enter a judgment at

varianc e with the jury ’s deter

mination a

nd without r

egard to the cou

rt’s duty to consider, on a case-by

-case bas is, w hether t

he jury ’s verdi ct is excessive as a matter o f law. De fendant s’ attemp t to fit this s tatute within the Unzicker

analysis is un avail ing. Defend ants also argue that the separation of powe rs clau se “allows the legislature to enact statutes affec ting the conduct of-19- litigationif its purpose is to serve legitimate legislative goa ls,” and that the statut

e here, althoug

h affec tin g the conduct o f litiga tion, is plainly intended to addre ss a heal

th-car e crisis. In su

pport, de fendant s rely chiefly on our a

nalysis in Burger v. Lutheran General Hospital
, 198 Ill. 2d 21 (2001), uph ol ding a statutory medical records disclosure provision against a separation of powers challenge. Defendants’ reliance on Burger is misplaced. As plaintiffs note, Burger did no t involve a statute affecting the conduct of litiga tion. Burger , 198 I ll. 2d at 41. Although the plaintiff in Burger argued that the statute a

t issue impe

rmis sibl y infring ed upon the judiciary’ s inherent authority to re gu la te di sc ov er y, we conc luded tha t the plain l anguage of the sta

tute did no t did so, an

d theref ore the s tatutedi d “not impinge upon the power of the judiciary .” Burger , 198 Ill. 2d at 39, 45. Moreover, we discern n o broad holding in Burger under whicha legis lative en

actm ent t hat would otherwise run afoul of separation

of powers principles will be deemed to pass constitutional muster simply becau se the enactment “serves legitimate leg islative goals.” The other

preced ents defendants cite are also inapposite. See Chicago Nat

ional Leagu e Baseba ll

Club, Inc. v. Thompson
, 108 I ll. 2d 357, 364-66 (1985) (rejecting a sepa ration of powers chall enge to

a statute subjecting night basebal l games to noise emission standards); Strukoff v

. Strukoff , 76 I ll. 2d 53, 57-60 (1979) (rejecting

a separation

of powers challenge to a

statute which required a waiting period betwee n th e court’s determination that grounds exist for dissolution of the marriage and the court’s disposition of property ). This is not to say

that the le gislativ e purpose or goa l of a stat ute is irrelevant to a separation of powersanalysis. I n Burger , Thompson
, and Strukoff

, we considered what the statutes required or r egulated and the legislature’s goals in enacting them. Burger , 198 Ill. 2d at 41; Thompson
, 108 I ll. 2d at 36 4; Strukoff , 76 Ill. 2d at 60. Here, too, we

necessa rily consider what the statute p urport s to do–limit

noneconomic damage s in medica l malprac

tic e actions–and the legislature’s goal in enact ing the s tatute–r

esponding

to a health-care crisis. Our separation of

powe rs analysis, howeve r, does not stop there. The cru

x of our ana

lys is is whether the statute unduly infringes upon the in he re nt po we r o f t he ju di ci ar y. That such an infringement

w as unintended, based on the language and stated purpose of the st at ut e, do es no t r es ol ve th e c on st it ut io na l i nf ir mi ty.-20- Defend ants stress that the General Assembly has the authority

to change the common law, which the General Assembly

has regula

rly exercised, and that inval i dating section 2–1706.5 undermines that

au tho rity and calls into question this court’s precedents upholding statutes that limit a

plaintiff’s damages. See Bernier v . Burris , 113 I ll. 2d 219 (1986 ); Siegal l v. Solomon , 19 I ll. 2d 145 ( 1960); Smith v. Hill , 12 Ill. 2d 588 (1958). The issue is no t whether

the Gene ral Asse mb ly may chang e the

commonlaw. As we recognized in Best , the Ge neral Assembly’ s authority to “a lter the common la w and cha

nge or limit avail able remedies *** is well grounded i n the jurisprudence of this state.” Best , 179 Ill. 2d at 408, citi ng Grand Trunk Western Ry. Co. , 291 I ll. 167. See also Michigan Avenue Nationa l Bank v. County of Cook
, 191 Ill. 2d 493, 519 (2000) (“leg islature has the in herent a uthority to repeal or change the common l aw and may do away with all or par t of it”). The General

Assembly’s authority

, however, is not absolute; it must be exe

rcised w ith in co nstitutional bounds. See, e.g. , People

v. Gersch
, 135 Ill. 2d 384, 395-98 (1990) (rec ognizing both the legislature’s inherent

power to alter the common law and the court’s duty to invalidate unconstitutional actions of our legislature). Here, the legisla

ture’s a ttempt i n sec tion 2–1706.5 to limit common law damages in medical malpractice actions runs afoul of the separation of powers clause. Invalidating

section 2

–1706.5 do es not, a s defend ants cla im, undermine this court’s precedents. In Bernier , Siegall , an d Smith
, cited by defenda

nts, we rejected constitutional challen ges to statues that prohibite d award s of punitiv e damag es in actions for healing

art malpractice, alienati on of aff ections, and brea

ch of promise to ma rr y,
res pec ti vel y. In Smith , we expressly reje cted a separation of powers chall enge to the ba n on pu niti ve dam ages, s tati ng:

“With reference to the act vi olat ing article II I of the constitution, we have already pointed out that the act does not affect compe nsato ry damag es, but only damag es considered intheir nature as punitive. The act in restricting re covery to actual damages, which term includes both gene ral and special damages an d e nc om pa ss es co mp en sa to ry d am ages b ecause they are synony

mous, does notinvade any judicia l functions of the courts. The act in barring puniti ve damag es mere ly-21- esta blishes a ‘ pu bl ic po li cy’ th at in th e i nt er es t o f s oc ie ty i n the particular class of cases such dam ages should not be awarded. Such damages being allowed in the intere st of

so ci et y, and not to r

ecompen se solely the individual, to deny themcannot b e said to d eny any constituti onal rig

ht or to

encroa ch u pon any judicial function, or to violate a ny
co nstituti onal guaranty

of separation of powers.” Smith , 12 I ll. 2d at 598. Our analysis in Smith makes pla inthat a ban on

punitive d

amage s is notakin to a cap on noneconomic compen sato ry damage s. Invalidating

section 2–1706.5 thus do es not call into question our holdings in Bernier , Siegall , and Smith

. Defendants further arg

ue that if section 2–1706.5 is invalidated, statu tes w hich limit common law liability cannot survive. See 745 IL CS 49/5 et seq. (West 2008) (Good Samaritan Act ; eli minating negligence

liability for certain he alth-care professionals and others who voluntar

ily e ngag e in life- saving a

ctivities ); 740 I

LCS 90/1, 3.1, 3.2, 4 (West 2008) (Innkeeper P rot ection Act; limiting hotel’s liability for loss or damag e to gue st proper ty) ; 745 ILCS 65/4 (West 200 8) (Recr eational Use of Land a nd Water Areas Act; eliminating negligence

liability of landow

ners who allow othe

rs to use their land free of charge for rec

reation al or c onserva

tion purpo ses); 210

IL CS 50/3.150 (West 2008) (Emerg ency Medical Service s (EMS) Sy

stems Act; eliminating negligence li ability for emergency provide rs of medical service s); 730 I LCS 115 /1(e) (We st 2008) (Probatio n Comm unity

Service Act; eliminating negligenc e liability fo r organizations and individuals who agree to accept c ommunity service from offenders). We decl i ne to comment on the constitutionality of statutes that are notbefore

us. We note , howeve

r, that, unlike section2–1706.5, none of the statut

es defe ndants ci te requi res a co urt to reduce a jury ’s award of noneconomic damag es to a prede termined limit, irrespective of the facts of

the case. Though the I

nnkeeper Protection Act does set

a dollar cap for a hotel’s liability for damage or

loss to gu es t p ro pe rt y, the statute a

lso all ow s the parties to contract around the statutory limit. 740 I LCS 90/ 1, 3, 3.1, 3 .2, 4 (West 2008). Th

us, the Innkeeper Protection Act does not parallel section 2–1706.5.-22- De fendant s direct th

is court’ s attention to statute s limiti n g
noneconomic damages in medical malpractice c ase s that have been adopted in othe r states . See Alaska Stat. §09.55.549 (2007) ($250,000 to $40 0 ,000 cap); Cal. Civ. Code §3333.2 (West 2009) ($250,000 cap); Colo. Rev. Stat. §13–6 4–302 (20 08) ($300 ,000 cap ); Fla. St at. §766.118 (2 009) ($ 150,000 to $1,500,000 cap); Ga. Code Ann. §51–13-1(b) (2009) ($3 50,0 00 to $1,05 0,000 ca p); Haw. Rev. Stat. §663–8.7 (2009) ($375,000 cap); Ida ho Code Ann. §6–1603 (2008) ($250,000 cap); Md. Code Ann. Cts. & Jud. Proc. §3–2A–09 (2009) ($650,000 cap with $15,000 annual increase beginn ing January 1, 2009); Miss. Code Ann. §11–1–60(2)(a) (2008) ($500,000 cap); Mo. Rev. Stat. §53 8.210 (2009) ($350,000 cap); Nev. Rev. Stat. §41A.035 (2009) ($350,000 cap); N.D. Cent. C od e §32–42–02 (2009) ($500,000 cap); Oh

io Re v. Code Ann. §§2323.4 3(A)(2) , (A)(3) (West 2009) ($250,000 to $1,000,000 cap); Okla. Stat . tit. 63, §§1–1708. 1F, 1–1708.1F–1 (2009) ( $300,000 c ap which may be lifted in some cases); S.C. Code Ann. §15–32–220 (2008) ($350,000 to $1,050,000 cap with annual adjustment); Tex. Civ. Prac. & Rem. Code A nn. §74.301 (Vernon 2009) ($250,000 to $500,000 cap); Utah Code Ann. §78 B–3–410 (2008) ($400,000 cap beginning July 1, 2002, plu s ye arly inflation adjustment); W. Va. Code §55–7B–8 (2 008) ($250,000 to $500,00 0 cap, plu s ye arly inflation adjustmen

t); Wis. Stat. §893.55(4)(d)(1) (2008) ($750,000 cap). De fendants contend that the limits on damages contai ned in section 2–1706.5 a

re well within the range of

reasonable limits adopted by the se states, and that the General Assembly

is on solid constitutional footing when the lines it draws are “within the genera l area of limits that had been set by other States.” Anderson v. Wagner , 79 Ill. 2d 295, 312 (1979). We have reviewed the statutes defendants cite and obser ve that the limitations on noneconomic damages adopted in other states vary wi de ly, not only in the amount of the cap, but other specifics . Fo r example, the California statute provides simply: “I n n o [medical malpract ice] action sh all the am ount of da

mages f or nonec onomic losses exceed two hundred fifty thousan d dolla

rs ($250, 000).” Ca

l. Civ. Code §3333 .2(b) (We st 2009). I n contra st, the Fl orida sta tute sets up a more complex scheme, in whichthe damages cap may be as low as $15 0,000 and as high as $1.5 million, depending upon whether the medical negligence is attributable to a practitioner or-23- n onpractitioner; the neg ligenc e results in a permanent ve getati

v e stat e
or death; the neglig ence ca

used a ca tastroph ic injury to the patient; or the negligence occur

red during the provision of emerge ncy care. Fla. Stat. §766.118 (2009). On wh at b asis defendants have determined that such disparate provisions are all reas onable is not know

n, and it is not for this court to ju dge the reasona bleness o f other s tates’ legislation. Moreover, defendants’ contention that because the damages caps established by se ction2–1706.5 fit within the range of caps established by other state s is not dispositive of whether section 2–1706.5 runs afoul of the separation of powers clause of this state’s constitution. That “every

body is doing it” is hardly a litmus test for the constitutionality of the statute. We are also not persuaded by defendants’ argument that the ci rcuit court’s judgment should be reversed beca use courts of othe r states, whichhave considered whether a limitation on noneconomic damages violates separation of powers, have re

jected th is argu ment. Defend ants cite Garhart v

. Columbia/

HealthOn e, L.L.C. , 95 P.3d 571, 581-82 (Colo. 2004), Zdrojewski v. Murphy , 254 Mich. App. 50, 8 1-82, 65 7 N.W.2d 721 , 739 (200 2); Judd v. Drezga , 2004 UT 91, ¶36, 103 P.3d 135, and Estate of Verba v. Ghaphe ry , 210 W. Va. 30, 35, 552 S.E.2d 406, 411 (2001). Our own research reveals additional

cas es from other sta

tes reje cting se

paration of powe

rs challe nges to their statutes capping noneconomic damage s in medical malpractice actions. See, e.g. , Evans v. State , 56 P.3d 1046, 1055-5 6 (Alas ka 2002); Ki rk

land v. Blaine County Medical Center , 134 Idaho 464, 470-71, 4 P.3d 1115, 1121- 22 (2000) ; Owens-Corning v. Walatka
, 125 Md. App. 313, 335-39, 725 A.2d 579, 590-02 (1 999); Gourley v. Nebraska Methodist Health System, Inc. , 265 Neb. 918, 955-56, 663 N.W.2d 43, 76 (2003). Alth ough decisions from other jurisdictions can provide guidance where precede

nt from I llinois is la

cking, we do not w

rite today on a blank slate. Our decision

in Best guides our analy sis. That the courts of other states would hold differ e ntly based on their constitutional jurisprudence applied to their statutes is of no moment. “This court’s jurisprudence of

state constitutional law cannot be predicated on *** t he actions of our sister states ***.” People v. Caballes , 221 Ill. 2d 282, 313 (2006).-24- We hold that the limitation on noneconomic damages in medical malpractice actions set

forth in section 2–1706.5 of the Code violates the separa tion of pow ers cla

use of the Illinois Constitu

tion (I ll. Const. 1970, art. II , §1) and is invalid. Because the Act contains an insever ability provision (Pub. Act 94–677, §995 , eff. August 25, 2005), we hold th e Act inva lid and voi d in

its entirety. We emphasize, howe ver, that because the other provisions contained in Public A c t 94–677 are dee

med inval id solely

on inseve

rability ground s, t he legislature rema ins free to reena

ct any provision s it deems appropriate.

II The partial concurrence and par t ial di ssent is in a

greement with the majority opinion on one relative ly m inor point (that this

case present s a facia

l, and not a

n “as app lied,” c onstitu

tional challenge) and is otherw ise oppose d to the ma

jorit y’s legal an alysis an d hol ding. Th erefore, for ease of discussion, we will refer to the p artia l concurrence and partial dissent simply as the “dissent.” Among the disse

nt’s crit icisms is tha

t we have

“rush[ed ]” to address the constitutionality of Public Act 94–677 ; that we on ly “purpor t” to defend the constitution; and that we stand as an “obstacle” to the legislature’s efforts to find an answer to the healthcare crisis, “put[ting] at risk the welfare of the people.” Slip op. at 33, 41, 52 (Karmeier, J., concurring in part and dissenting inpart, joined by Ga rman, J.). The disse

nt implies that the maj ority opinion is somehow an affront to the health-care reformefforts of the Ob ama Administration, and expressly cautions that if we “p ersist in invalidating d amages caps,” dire consequ ences will likely follow. Sli

p op. at 27-28, 51 (Kar

meier, J., c oncurri

ng in pa rt and dis senting

in part, joined by Gar

man, J.). Pl ai nl y, the Obama

Admi nis tration’ s health- care r eform e fforts

are not the ba

ckdrop a gainst whi ch we have decided the constituti onality

of Public Act 94–677, and we express no opinion–f avorabl e or otherwise– as to those efforts. Rather, our decision in this case, that Public Act 94–677 cannot stand, is based,

as it must be, on the binding provisions of our state constitution and

our case law interpreting

the s ame. Although we do not expect that-25- the members of this court will alway s agreeas to what the law is, or how to appl y t he law in a given case, we do e xpect that our disagr eements will focus on the legal issues, providing a level of discours e appropr

iate to the state’s highest court. The emotional and political rhetoric that pepp ers the d

issent is ill -suited to

this pursu

it. As to the leg al issues t

he dissen t does ra ise, we a ccept that, with respect to the applicability of

the Best decision, the members of this court cannot speak with a

unanimous voice. The dissent is a s firm in its belief that Best

was wron

gly decided as the ma

jority is in its conclusionthat Best

is as valid

today as it was i

n 1997 and

controls the disposition of the present case. Our reasons therefor have already been set forth above, and we fi nd it unnece ssary

to reiter ate those

reasons in contra distinction to the dis sent’s vie ws. We are constrained, however, to respond dire ctly to on e is sue raised b y the dissent, namely , that this court lacks subject matter j urisdiction to consider the constitutionality of Public Act 94–677

. Slip op. at 36 (Ka

rmeier, J., concur

ring in part and dissenting

in part, joined by Garman, J.). Be c aus e a revi ewing c ourt has a “duty to consider its jurisdiction and dism iss the appeal if it determines that jurisdict ion is wanting,” we will consider this issue. Archer Daniels Midland Co. v. Bart

h , 103 Ill. 2d 536, 539 (1984). See al so In re M.W. , 232 Ill. 2d 408, 417 (2009) (“lack of subje ct matter jurisdiction is not subject to waiver”). The dissent’s view that

this court lacks jurisdict

ion is base d on its conclusionthat plain

ti ffs la ck standing to challenge the

cons titutional ity

of Public Act 94–677 and that the constitutional issue is not ripe for review. Slip op. at 39 (Karmeier, J., concurring inpart and dissenting in part, joined by Garman J.). As discussed below, issu es of standing and ripeness do not implicate our subject matter jurisdiction. The related doctrines of

stand ing a nd rip enes s “se ek[ ] to insure that courts decide actual cont roversi es and not abstract questions.” People v. $1,124,905 U.S. Curren cy & One 1988 C

hevrole t Astro Van , 177 Ill. 2d 314, 328 (1997). See also Wexler v. W irtz Corp. , 211 Ill. 2d 18, 23, (2004) (“doctrine of standing is to insure that issues are raised only by those parties with a real interest in the outcome of the controversy” ); People v. Glisson , 188 Ill. 2d 211, 221 (1999) (same); B est , 179 I ll. 2d at 38 2-84 (dis cussing ripenes s with res

pect t o-26- declaratory

judgmen t sta t ute); Weber v. St. Paul Fire & Marine Insurance Co. , 251 Ill. App. 3d 371, 372-73 (1993) (“ whether an actionis ‘premature,’ that is, not ripe for adjudication, focuses on an evaluation

of the fitness of

the issue for judicial decision at that point in time”). Under Illinois law, la

ck of sta ndin g is a

n affirmative defense, whichis the defendant’s burden to plead and prove. Wexler , 211 Ill. 2 d at 22-23; In re Estate of Schlenker , 209 Ill. 2d 4 56, 461, 46 4 (2004); Greer v. Illinois Ho using Dev elopmen t Authority
, 122 Ill. 2d 462, 494 (1988). While a lack of subject matter jurisdiction cannot be forfe ited (

M.W. , 232 Ill. 2d at 417), a lack of standing will be forfeited if no t r ai se d i n a ti me ly manner in the tria l court ( Skolnick v. Altheimer &

Gray , 191 Ill. 2d

214, 237 (2000); Greer , 122 Ill. 2d at 508; Lyons v. Ryan , 324 Ill. Ap p. 3d 1094, 1101 n.5 (2001)). Ripeness, like standing, is also subject to forfeiture if not raised in the trial court. In the Interest of General Order of October 11, 1990 , 256 Ill. App. 3d 693, 696 (1993). Inthe present case, Gottlieb and Martinoz did not assert in the trial court tha

t plaintif fs lack s tanding, nor did they argue that the

co nstitutional issue was not ripe for review. Thus, we deem the s e
ar guments

forfeited by

these defendants. Dr. L evi-D’Ancona
, however, did assert lack of stand ing and ripeness as his first and second affirmative defe n ses, and moved for judgment on the plead ings as to these two defenses. The circuit court reje cted Dr. Levi-D’Ancona’ s argume nts and denied his motionfor judgment on the ple ading s. Relying on Best , the circuit court concluded that plaintiffs at least had stand ing to challenge the statutory cap on noneconomic damages and that the const itutionali ty of the statutory cap was ripe for review. The circuit c ourt obse rved tha t catastr ophic injuries similar to t

hose pled by plaintiffs in the instant case were pled in th e complaints at issue in Best , and that this court held tha t “plaintiffs ha ve alleged a sufficient and dire ct interest in the applicationof the challenged provisions *** to their lawsuits.” Best , 179 Ill. 2d at 383. Significantly, Dr. Levi -D’Anc ona did not rene w his standing and ripene ss argu ments bef ore this c ourt. Und

er our Ru le 341, “[p]oin

ts not argued

[in the appellant’s brief] are waived.” 210 Ill

. 2d R . 341(h)(7). Accord Skolnick, 191 Ill. 2d at 237 (this court “will not supply contentions not advanced by the parties”).4 The disse nt’s conclusion that standing and ripeness raise jurisdictional

concerns which this court m ust address even if t he part ies have not done so

m ight be worthy of consideration if this case wa s proceeding in fed era l court. Under federal law, standing is a thr eshold questio n under

the cas e-or

controversy

requirement of article III of the United States C onstitution (U.S . Con st., art. III, §2; Warthv. Seld in , 422 U.S. 4 90, 498, 45 L. E d. 2d 343, 354, 9 5 S. C t. 2197, 2205 (1975)), wh ich plaintiffs bear the burden of pleadingand provi ng (

Lujan v. Def

enders of Wi ldlife
, 504 U.S. 555 , 560- 61, 119 L. Ed. 2 d 351
, 364, 112 S. Ct. 2130, 2136 (19 92)). Accord Elk Grove Unified School District v. Newdow , 542 U.S. 1 , 11-12, 1 59 L. Ed. 2d 98, 108- 09, 12 4 S. C t. 2301 , 2308 -09 (2004). Article II I sta nding is jurisdictional and not subjec t to waiver. United States v. Hay s , 515 U.S. 737, 742, 132 L. E d. 2d 635, 642, 115 S. Ct. 2431, 2435 (1995). See also Native American Arts, Inc. v. Waldron Corp. , 253 F. Supp. 2d 1041, 1045 (N.D. Ill. 2003) (concluding that, by definition, article III standing is not an affir mative defense). T his cou rt is not required to follow federal law on issues of standing, and has expressly rejected feder al pri ncipl es of st andin g. See Greer , 122 I

ll. 2d a t 494 (holding

that, i n Illinois, lack

of standing is an aff irma t ive defense, and contrasting Illinois with fe deral courts “where lack of artic le II

I (U .S. Co

nst., a rt. I II) standi

ng is a bar to

jurisdict ion”).

-27- Becau se issues of

standing and ripe ness do no t implicate

th i s court’s subject ma

tter juri sdictio n, a nd because the only party who raised theseissues below has abandoned them on review, we dec line to addre ss these is sues on the merits. 4 CONCLUSIO

N For the rea sons state d, we re verse th e ju d gment of

the circ uit court finding the statut

e u nconstitu

tional as a

pplied to p laintiff

s, affirm the judg ment of the

circuit c ourt find

ing the s tatute fa

cially invalid, and remand this matter to the circuit co urt for further procee dings.

Affirmed i n part and re

versed i n part; cause remanded

.

JUSTICE THOMAS took no part in the consideration or decision of this case.-28- JUSTICE KARMEIER, concurring inpart and

dissenting

in part: Ina recent address to a joint session of the United States Congre ss, President Obama admonished that our nation’s “collective failure to meet [the] challenge [of health-care reform]–yea

r after y ear, decade af ter deca de–has led us to the breaking point.” Millions are unable to obtain health care coverag e, ” he a sserted; “medical costs are rising”; and

the existing system is “placing an unsustainable burden

onta xpay ers.” According to the President, the fa ilure to take immediate

c or rective action will be dire: “Our deficit will grow . More families will go bankrupt. More bu sinesse s will close. More Americans will lose their coverage when they are sick and need it the most. And more will die as a result.” Inoutlining

his strate gy

for addr essin g this crisis, the President advanced a multifaceted plan. Although his proposal focused on expanding health insurance coverage
, he also recognized that reform of medical malpractice laws might aid in re duc ing our nation’s health-care costs, while also improving the quality of care delivered by phys icians a

nd rece ived by

their pa tients. That medical malprac tice ref

orms might

have salutary

effects on the deliver

y of afford able hea lth-car e in I llinois was a view shared by

our Genera l Assembly

when it enacted Public Act

94– 677 in 200 5. In enacting that law, the General Asse mbly specifically

found: “This health c are cr

isis, which endang ers the p ublic health, safety, a

nd welfare of the citizens of I llinois, requires signi ficantreforms

to the civil justice

sys tem curr

ently endangering

health care for citizens of I llinois.” Pub. Ac t 94–677, §101(4), eff. August 25, 2005. The types of ref

orms which the legislature determined to be necessary were tho se which

would “enhance the State’s oversight of physiciansand abili

ty to d iscipline phy sicians, *** incre ase the St ate’s ov ersig

ht o f medical liability insurance ca rriers, *** reduce the number of nonmeritorious healing ar t malprac ti ce actions, *** limit noneconomic damage s in healin

g art m alprac tice actions, ***

encou rage physicians to provide vol untary service s at free medical clinics, * ** encou rage p hys ic ians and hospit

als to continue providing health care services in Ill inois, and ***-29- encou rage physicians to practice in medical car e shor tage areas.” Pub. Act 94–677, §101(5), eff. Aug ust 25, 2005. The majority’s op ini on contains a brief description of the

measures adopted by the Ge neral As sem bly

to impleme

nt these objec ti ves. To fully

understa nd what th e legis lature hoped to accomplish, however, additional discussion of the particulars of

the progra m may be helpf ul. Section310 of Public Act 94–677 amended the Illinois Insura nce Code (215 IL CS 5/1 et seq. (West 2004 )) to subje ct me dic al malpractice insurance carriers to gre ater oversight and reporting requirements. Pub. Act 94–677, §310, eff. August 25, 2005. Section315 revised

the Medical

Practic e Act of 1 987 (225 I LCS 60/1 et seq. (West

2004)) to modify

certain aspects of the disciplinary process fo r p hys ici ans and create an internet-base d system for providing pu

blic a ccess to information regarding such matters as phy sicians’ criminal and

disciplinary histories, whether a physician’s hospital privileges have been revoked or involuntarily restricted, a nd any medical malpractice judgments or arbitration awards which may have been entered against a phy sician. Pub. Act 94–677, §315, eff. August 25, 2005. Section330 (Pub. Act 94–677, § 330, e ff. August 25, 2005) amended the C ode of Civil Procedure (735 IL CS 5/1–101 et seq. (West 2004)) by making

various changes to the affidavit and wr itten report req uire ments set forth in section 2–622 (735 IL CS 5/2–622 (West 2004)), including addition of a requirement that the reviewing health-care professional’s written rep o rt contain the health-care professional’s name, addre ss, c urrent license number and state of licensure. Section 330 of the Act also added a new section 2–1704.5 to the Code (73 5 ILC S 5/2–1704.5 (West 2006)), which allowed either party to elect t o have pay

ments for future medical expenses and cost of life care made to the prevaili ng plaintiff in a medical

ma lpractice action th

rough p urchase of an ann

uity . Anoth er ne w provision of the Co de added by sec tion 330 of the Act was section 2–1706.5 (735 IL CS 5/2–1706.5 (West 20 06)). T hat statute created standards for economic and non eco nomic damages, including establishment

of limitations on the total amount of non econo mic damages which could be awarded to plai nt iffs in a medical5 In the case o f awards against “a hospital and its personnel or hospital affiliates” based on me dical malpractice, the total amount of noneconomic damagesawarde d to all

plainti ffs is li

mited to $1 million. Whe

n the action is against “a

phys ician an

d the ph ysicia n’s bus iness or

corpor ate entity and personnel or health care p rofessional ,” the limit is $500,000. 735 ILCS 5/2–17 06.5 (W est 200 6).

-30- malpractice action. 5 Two other changes to the Code made by sec tion 330 of the Act were:

(a) i nclusion in section 8–1901 (735 IL CS 5/8–1901 (West 2006)) of a pro visio n rendering inadmissible “[a]ny expression of grief

, apolo gy, or ex pl an at io n” ma de by a health-care provider to a patient , a p atient’s family or a “patient’s legal representative” re garding “a n i nadequate or unanticipated

treatment or care outcome” provided within 72 hours of when “the provider knew or should ha ve kno wn of the potential cause of such outcome”; and (b) revision of section 8–2501 (735 IL CS 5/8–2501 ( West 2006)) r egard ing exper t witness s tandard s. Section340 of the Act amended section 30 of the Good Samaritan Act (745 IL CS 49 /30 (W est 2006)) to expressly include re tired physicianswithin its immunities and to add a provisionallowing free cl ini cs to receive reimbursement from the Illinois Department of Public Aid subject to the condition that any such re imbu rsemen ts shallbe used exclusively to pay the overhead expenses of operating the clinic and may not be use d to provide a fee or other compensation to physicians or hea

l t h care professionals receiving an exemption fromliability under the law’s provisions. Pub. Act 94–677, §340, eff

. August 25, 2005. Fi na ll y, article 4 of the Act (Pub. Act 94–677, §§401 through 495, eff. August 25, 2005), codified at 710 ILCS 45/401 et seq. (West 2006)), created

a new Sorry

Works! Pilot Program Act. The program

was intended to assess whether prompt apologies by hos pi tals and physiciansfor errors in patient care accompanied

by prompt offers of fair settlements have an effect on the costs the hospitals and physiciansultimately

expend on h ealing

art malpr actice claims. The program was to be of limited duration, no more than two years unless-31- terminated sooner by

the program’s oversig

ht committe e. 710 I

LCS 45/415 (West 2006). It also had limited participation. In its first y ear, it was to include just one hospital. The following year, provided the program was notterminated, one additional hospital could be added. 710 IL CS 45/405 (West 2006). While the need for health-care re formhas ga ined nea rly universal recognition
, the me ans for achieving that reform ha ve been the subject of intense debate. Some fear that gove rnment-m a ndated changes will distortthe health-care market, impede ac cess to healthcare resources and interfere with the phy sician-patient relationship. Others insist that unless the government takes strong and immed

iate actionto overhaul the current syste m, the costs of me dical ca re will exceed our socie ty’ s ability

to bear t hem, leaving increasing numbers of our ci tizens witho

ut acce ss to vital health-c are ser vices. The sentiments ex pr essed by President Oba ma in his recent address to Congress and the action taken by ourGenera

l Assembly throu gh enactment of Public Act 94–677 are clearly premised on the latter view. Whether this view is a sound one is a judgment our court is not compe

tent to re nder. Pub lic policy

determinations of this kind

are ultimately a matter for the legislature. Household Bank, FSB v

. Lewis , 229 Ill. 2d

173, 182 (2008). It is not our function to weigh the wi sdom of le gisl ation

or de cide

whet her t he po licy it exp resse s offends public we lf

a re. Roselle Police Pension Board v. Village of Roselle
, 232 I ll. 2d 546, 5 57 (2009) . This is no l ess tr ue i n matters pertainingto health

care. To the contrary , we have repeatedly noted that the General Assembly

has wide regula

tory power wi th respe ct to the health-care professions and that it is within the broad disc retion of the legislature “ ‘to determine not only wha t the public interest and welfare require, but to determine the measures neede d to secure such interest.’ ” Burger v. Lutheran General Hospital , 198 Ill. 2d

21, 40- 41 (2001 ), quo ting Chicago Nat ional Leagu e Ball

Club, Inc. v. Thompson , 108 Ill. 2d 357, 364 (1985). In his partial dissent in Mohanty v. St. John Heart Clinic, S.C. , 225 Ill. 2d 52 (2006), another ca se involving ph ysicians , Justice Freeman recently

reminded us that

“ ‘[t]he prima

ry expression of I ll in ois public and social policy should emanate from the legisla ture. Thi s is especia

lly true regar

ding issu es like the

present one, whe

re th e re is-32- disag reement

on whether a new rule is warranted. T h e members of our

General Assembly, electe d to their offices by the citizenry

of this Stat

e, are b est able

to determine whether a change in the law is desirable and w orkable.

*** The General Assembly , by its very nat ure, has

a superior ability to gather and synthesize data per

tinent to the issue. It is free to solicit information and advice f rom the many public and private organizations that may be impacted. Moreover, it is the onl

y e ntity with th e po wer to weigh and properl y balance the many

competing societal, economic, and policy considerations involved.’ ” Mohanty
, 225 Ill. 2d at 96 (Freeman, J., concurring in part and dissenting in part), quot ing Charles v. Seigfried , 165 Ill. 2d 482, 493 (1995). Ou r a pp el la te co ur t e xp re ss ed th e s am e p ri nc ip le s t hi s w ay: “the authority

to deter mine appr opriate public policy

is vested inthe legislature, not the courts. [Citations.] This court has explained the rea son that c o urts shoul d be very cautious in

es ta bl is hi ng pu bl ic po li cy: ‘Courts are ill

equipped to determine what the

public poli cy should be. Seldom ar

e all inte rested p arties, al l facts, and all issues pre sent in a single case, where the court can rationally ba

lance all the fac tors nec essary to esta blish a policy g ood for society. F urther, establishi n g public policy

may entail the

balanci ng of po li t ical interest s. This is a fu nctio n of th e legi slatur e, not the courts.’ [Citation.]” Board of Education of Dolton School District 149 v. Miller , 349 Ill. App. 3d 806, 811 (2004). Becau se the formulation and implementation of public policy a re principa lly legislative functions, the courts afford substantial deferenceto legis lative en actments . Under I

llinois law, statutes carry

a strong presumption of constitutionality. People v . McCarty , 223 I ll. 2d 109, 135 (2006). The burde n of r ebutting that presumption is on the party cha

llenging the statute. T

he burde n is a heavy

one. The party challenging

the law must clearl y e st ablish that it violates the constitution. People v. Johnson
, 225 I ll. 2d 573, 5 84 (2007) . If i t is

reasona bly possible to uphold the constitutionality of a statute, a court must do so. Napleton v

. Village o f Hinsdale
, 229 Ill. 2d 296, 306-07-33- (2008). We cannot nullify a legislative enactment merely because we consider it unwise or believe it offends the public welfare. Roselle P olice Pension B oard v. Vi llage of Ro selle , 232 Ill. 2d 546, 5 5 8 (2009). For us to second-gue s s the wisdom of legislative determinations would, in

fact, be prohibited by article I I, section 1, of the Illinois Constitu

tion of 197 0, which e

xpressly states tha

t “ [ n]o branc h shall exercise powers properly belonging to another.” I

n m y view, the majority’s opinion tod ay flatly

violates this prohibition. While my col leagues purport to defend separ ation of powers principle s, it is their decision, not the ac ti on of th e G en er al As se mb ly, whichco nstitut es the improper incursion into the power of another branch o f gove

rnment. One point on wh

ich I agree with the ma

jority is that the c ir cuit court erred in holding the stat ut or y provision at issue here unconstitutional “as applied.” For the reasons given by the ma jo ri ty, the only question p ro pe rl y before us is whether the sta

tute is unconstitutional on its face. See slip op. at 6. A facial challenge to the constitutionality of a l egislative enactme nt, su ch as the

one brou

ght her e, is the mo st diffic

ult to mountbecause the circumstancesin which a statute is faciall y invalid

are so limited. The fact that the enactment could be found unconstitutional under some set of circumstances does not establish its fac ial invalidity. Napleton v . Village o

f Hinsdale , 229 Ill. 2d at 305-06. To succe ssfully

challen ge a sta tute as unconstitutional on its face, one must show that the stat ute w ould be invalid under any imagin able set of cir

cumstanc es. As lon

g as the re exists some situation in which a

statute c ould be va

lidly appli ed, a fa cial c halle nge must fail. In re M.T. , 221 Ill. 2d 517, 536-37 (2006). Reduced to its essence, the majority ’s argument is that Public Act 94–677 is une nfo rceabl e becau se the limi tation on n

onecono mic damages containe d in section 330 of the Act, codif

ied as section 2–1706.5 of the Code of Civil Procedure (7 35 IL CS 5/2–1706.5 (West 2006)), c onstitute s an impermissible encroachment upon the inherent power of th e judi ciary to co rrect j ury verdi cts th rough remittitur. In the majority ’s view, this conclusionis compelled by our prior decision in Best v. Ta

ylo r Machin e Works , 179 Ill. 2d 367 (1997), which invalidated Public Act 89–7 based on a provision in the law which amended the Cod e of Ci vil P rocedu re by placi ng a-34- $500,000 cap on

compensatory da

mages for none conomic i

njuries in “allcom mon law, statutory or other actions that seek damages on account of death, bodily injury

, or physical dama

ge to property

based on negligence, or product liability based on any theory or doctrine.” 735 IL CS 5/2–1115.1(a) (West 1996). Before addressing the merits of the major

ity’ s analy

sis, there is a p reli minary

matter I feel constraine d to raise . While I agree that a significant

constit utional quest

ion is presented by the issue of whether the limits on noneconomic dama ges in medical malpractice actions imposed by section 330 of Pub lic Act 94–677 violate separation of powers principles under our decision in Best , I question

whether this particular case is a n appropriate ve

hicle for resolving the q

uest i on. That is so for two reasons. T he firs t is jurisprudential. The second pe rt ai ns to ju st ic ia bi li ty. Best was decided more than a decade ago. Since tha

t time, ou r court has applied the standar

ds gove rning c onstitutional challe nges to state statutes with heightened diligence. We made the point rec ently in People v. Hampton , where we held:

“Shortly after the appellate court’sopinion was entered in this c ase, th is court reaffirmed our long-standing rule that ‘cases shoul d be de cided on non const itut ional gr ound s whenever possible, reaching constituti onal issue s only as a last resort.’ In re E.H. , 224 I ll. 2d 172, 1 78 (2 006) . We reminded courts th at they

must avoid

reaching constitutional issues when a case can

be decided on other, nonconstitutional g rounds. In re E.H. , 224 I ll. 2d at 17 8. Constitut ional is sue s should be addressed

only if necessa

ry to decide a

case. People

v. Waid , 221 Ill . 2d 46 4, 473 (2006 ), quo ting Peop le ex rel. Sklodowski v. State o

f Illinois , 162 Ill. 2d 117, 131 (1994). As noted in E.H. , this court has gone so far as to ad d a
re qu irement

to our rules that courts include a written statement that t he d ecision cannot rest upon an alternate, nonconstitutional b asis before deciding a case on constituti onal grounds. In re E.H. , 224 Ill. 2d at 178, citing 210 Ill. 2d R. 18(c)(4) (effective September 1, 2006).” People v. Hampton , 225 Ill. 2d 238, 243-44 (2007). Applying these p rinciples in Hampton , we held that the a

ppellate court had prematurely

considered the constitutionality of the statut e-35- challenged

in that case and vacated the portion of i ts jud gment addres sing that constitutional issue. People v. Hampton , 225 Ill. 2d at 245. The same result is appropriate here. Inthe case

before us, the ci rcuit c ourt did

enter an order under Rule 18(c)(4) in which it held that its judgment could not rest on an alternative, nonconstitutional ground. At this point, however , no basis for that finding exists. Should defendants pr evai l or should the damages awarde d by

the jury be less th an the limi

ts i mposed u nder Public Act 94–67 7, judgme nt can ce

rtainly be e ntered without ad dr es si ng th e l aw ’s co ns ti tu ti on al it y. To be sure, an immed iate ruling on the validity of the law may yie ld efficiencies for the resolution o f this particular case or other

cases in whichPublic Act 94–677’s limits on noneconomic damages hover as a potential constra

int on a pa

rty ’s reco very . We have c learly held, however, that interests of efficiency or judicial economy do not justify addressinga constitutional issue before it is necessary to reach it. People v. Hampton , 225 Ill. 2d at 244-45. Jurisprudential restraint regarding c onstitutional questions is not

a principle we are free

to follow or ignore as wesee fit, f or it goe s to the very foundati o ns of our tripartite system of government. As we explained in Ultsch v. Illinoi

s Municipal Retirement Fund, 226 Ill. 2d 169, 176 (2007), “[t]he Illinois Constitution establishes three coequal branches of gover nment, ea ch with its

own powe

rs and fu nctio ns. I ll. Const. 197 0, a rt. II , §1. The constitution declares that the legislative branch makes law s, and tha t the judic ia l bra nch decides cases. *** The de terminat ion of the constituti onality of a statute when not required to decide the case c animpi nge uponthe lawma

king fun ction of the legis lature. [Ci tat ion.] The policy of prudential judicial re straint is grounded in those considerations that form the un ique character of judicial review of government

action for constitutionality. The policy is based on the delicacy

of that function, the necessity of each br anch of government keeping within its power, and the inherent limita tionsof the

judic ial pr

oces s. [Citation .]” By procee ding to the constitu tional issu

e in this case, when doing

so is no t yet nece ssary for r esolution of the case, the majori ty ha s6 Althou gh Dr . Lev

i-D’ Ancona

did not argue the ripe

ness and standing issues in the brief

he filed in our court, the issu

es shou ld not b e deem

ed to have been wa ived. St anding is not a proced ural technicalit

y, bu t rather is

an aspe ct or componen

t of justiciability. Bridgestone/Firestone, Inc. v. Aldridge
, 179 I ll. 2d 1 41, 14 7 (1997 ). The sa me is tru e of r ipeness . We have therefore held that wh en a pla intiff la cks st anding to asse rta claim or

a dispute is not ripe

for adjudication, the circuit court’s judgment m ust be

-36- disregarded

these fundam ental principles. Under the reasoning of Ultsch
, its decisi on impermi ssibly trenche s upon the a

uthority of the Ge ne ra l A ss em bl y. A second and equa lly fundame ntal conc ern reg arding

whether it is appropr iate for us to reach

the co nsti tuti onal q uesti on at t his s tage of the pr oceedi ngs is ju st ic ia bi li ty. Article VI, s ection 9, of the Illinois Constitution of 1970 e xpressly provides that circu it courts have original jurisdiction over “ all j usticiable matters except when the Supreme Court has origina

l and exclu sive juris diction.” In or der to invoke the subject matter jurisdiction of the circuit court, a

plaintiff’s

ca se, as framed by

the complaint or petition, must therefore pres en t

a justiciable matter. Belleville Toyota, Inc. v . T oyota Mot

or Sales, U.S.A., Inc. , 199 Ill. 2d 325, 334 (2002). See also In re M.W. , 232 I ll. 2d 408, 426 (2009). Ge ne ra ll y, a “justiciable matter” is “ ‘a controversy appr opr iate for review by the

court, in that it is definite and concrete, as opposed to hypothetical or moot, touching upon the legal relations of parties having adverse legal interests.’ [Citation.]” In r e M. W. , 232 Ill. 2d at 424. In ascertaining

whether a justiciable matter has been presented, courts consider

various c riteria including standing and ripeness. See Morr-Fitz

, Inc. v. Blagojevich , 231 Ill. 2d 4 74, 488 (2008). In the circuit court, Dr. Levi-D’A

ncona. raised b oth

these issues. He argued that plaintif f s lacked standing to challenge the statute or , in the alternative, that p laint iffs’ chall enge was not yet ripe for

adjudication. The circuit

court rejected Dr. L evi-D’Ancona’s standing and ripenes s
c hallenges in so far as they pertained to plaintiffs’ cl aim for a declaratory

judgment that the portion of Pub li c Act 94–677 adding section2

– 1706.5 to the Code of Civil Procedure contravened the separation

of powers provision of our state’s constituti on (I ll. Const. 1970, art. II , §1). In my

view, however, that was error. 6setaside for lack of subject matter jurisdict ion. Peop le v. Capitol News, Inc. , 137 Ill. 2 d 162, 170 (1990 ). Lack of sub ject matter jurisdiction is not subject to waiver and cannot be cured throug h consent of the parties

. In re M.W. , 232 Ill. 2d at 417.

-37- Standing is an aspect

of justiciability in which the primary focus is upon the personal stake in the outcome of the controversy

of the person seeking the adjudi cation o f a particular issue. The person

se eking t o invoke the jurisdiction of the court must have some real in terest in the cause of action, or a lega l or equitable right, title or interest in th e subject matter of the controversy . See Illinois Mu nicipal

League v

. Illinois S

tate Labor R elations B oard , 14 0 Il l

. App. 3d 592
, 598 (1986 ). This re quireme nt is not excu sed in declaratory

judgment actions. To the contrar y, we have expressly

held that standing is a preliminary question in all declaratory judgment actions. Village of Chatham v. County of Sangamon , 216 Ill. 2d 402, 419 (2005). The doctrine

of standi ng ensu res that i ssu es are r aised only by parties with a real interest in the outcome of the controversy . Under the law of this state, standing is shown by demonstrating some injury to a lega lly co gn iz ab le in te re st . T he cl ai me d i nj ur y, whether actual or threatened, m u st be distinct and palpable, fairly traceable to the defend ant’s actions, and substantially likely to be prevented o r redressed by t he gra nt of the r

elief re quested. In th e context of a declaratory

judgment action, “ ‘there must be an actual c ontroversy between adverse parties , w ith the party reque sting the declaration possessing some personal claim, status, or right which is capable of being affected by

the grant of such relief.’ ” Villag e of Ch atham v. County of Sangamon , 216 Ill. 2d at 419-20, quoting Greer v . Illinois Housing De

velopme nt Authorit

y , 122 Ill. 2d 462, 493 (1988). While the essence of the standing inquiry is whether a pa

rticular party is entitle d to have the court decide the merits of a dispute, ripenes s is concerned with the fitness of the issue for judicial decision at a particular point in time. See Preferred Personnel Services, Inc.

v. Meltzer, Purtill &

Stelle, LLC

, 387 Ill. App. 3d 933, 938 (20 09) . In evaluatinga ripeness challenge to a dec laratory judg ment action, the court considers whethe

r a ruling on the disp

ute would be premature, for a “cour t cannot pass judgment on mere abstract propositions of-38- law, render an a dv is or y o pinion, or give legal advice as to future events.” See Stokes v. Pekin Insurance Co. , 298 I ll. App. 3d 278, 281 (1998) (upholding dismissal of action seeking declaration that insurance policy

limits excee ded $100, 000 on th e g rounds that underlying

liability had y

et to be determined

and that bare allegations incomplaint

were insufficient to establish existence of actual controversy)

. Where, as here, plaintiffs attack a statute as unconstitutional, they must bring themselves within the class as to who m the law i s allege dly constituti onally

objectionable. Whe

ther the requisite standing exists must be determined on a case -by-case b asis. Messen ger

v. Edgar , 157 Ill. 2d 162, 171 (1993). I t is ther efor e pertinent to in quire who is and wh o is n ot com plain ing. Courts do not rule onthe const

itutionali ty o f a statut

e where the compl aining p arty is on ly t he or et ic al ly aff

ected by the

alleged invalidity

of the provision. See Illinois M

unic ipal Le ague v. Illinois State Labor Relations Board
, 140 Ill. App. 3d at 599. To h ave st andin g to bri ng a declaratory

judgment action

challenging

the validity of a statute, one must have sust ained, or be in immediate danger

of sustaining, a direct injury as a result of enforcement of the statute. Village of Chatham v. County of Sangamon , 216 Ill. 2d at 419-20. The plaintiffs in this case have not ye t prevai led on any

of their medical malpractice cla

ims ag ainst any

of the de fendant s named in their complaint. The case r emains a t the pleading stage, and the allegations of malpractice contai ned in the complaint have been denied. Whether defendants will ultimately be found liable for plaintiff s’ injuries and, if liable, whether plaintiffs will succ eed in establishing a basis f

or an aw ard of noneconomi c damage s in excess of the limits im

pose d by th at portion of Public Act 94–677 adding section2–1706.5 to the Code of Civ il Proced ure is theref

ore enti rely speculative. Inthe circuit court, the sole factual pre di cate advanced by plaintiffs in support of their assert io n that they are already facing sufficient harm to satisfy standing

re quirem ents was the allegations set forth in their comp laint. Plai ntiffs’ p osition is that those al leg ations are com

parable to the alle gations

we found

sufficie nt in Best v. Taylor Machine Works , 179 Ill. 2d at 383-84, when rejec ting

a ripeness challenge to the validity of the statute at issue there. There-39- is, however, in a fundamental difference between how the issue was raised in this case and how it cam e befo re us in Best . In Best , the particular question of ripeness was decided in thecontext of motions to dismiss under section 2–615 of the Code of Civil Procedure (735 IL CS 5/2–615 (West 2006)) filed by the opp o sing parties

. Best v. Taylor Machine Works , 179 Ill. 2 d a t 382. The allegations in the complai ntcould therefore be taken as true. He re, by contr

ast, t h e matter was decided in the context of separat e m otions filed by plaintiffs and defendant Dr. L evi-D’An con a under section 2–615 motion s whic h were d

irected at their own respective pl eadings. By electingto proceed in this way , plaintiffs and Dr. Levi-D’ An cona have conceded that the a lle gations in their respective pleadings ar e falsein so far as they

have be en contr

overted by o pposing pleading s. See Christensen v. Wick Building Systems, Inc. , 64 Ill. App. 3d 908, 91 2 (1978). A s we have

noted, Dr . Lev

i-D’Anc ona has vigorous ly contested t he fact u al basis for plaintiffs’ claims against him. The factual basis whichenabled our court to rej ect th e ripen ess ch allen ge in Best is therefore absent here. Our court ha s recog

nized that a

n issue wh

ich is othe

rwise nonjustic iablemay never

theless be examined when the magnitude or immediacy

of the interests involved warrant action by the cour t. This so-called “public interest” exception arises most often when a matter has become moot and, in that context, requires (1) the existence of a question of public importance; (2) the desirability of an authoritative determination

for the purpose of guiding public office rs in the performance of their duties; and (3) the likelihood that the quest ion will recur. People v. Jackson , 231 Ill. 2d 223, 228 (2008). While this court has never extended the doctrine to cases where the problem w

ith justicia

bi li ty p ertains to standing or ripeness, our appella te court has rul ed that th e reasoning of o ur “publi c intere st exception” cases shou ld also permit an exception

to the ripe

ness doctrine. See In re General Order of October 11, 1990 , 256 Ill. App. 3d 693, 696 (199 3). Assumi ng, without decid

ing, tha t the appe llate court’s view is correct, invocation of the doctrine is not warranted here. The public interest

exception is construed narrowly and requires

a clear showing

of each element before it may be applied. People v. Jackson
, 231 Ill. 2d

223, 228 (2008). That stan dard ca nnot be me

t in-40- this case. While it is evident that plaintiffs and the numerous entities whichhave filed friend of the court briefs ar e keenly interested in our views on th e v al id it y of the P ublic Act 94–677’s caps on

noneconomic d a mages, the law ha s been in e ffect si nce 2005 . It is

now 2010. To my knowledg e, there has yet to be a single documented instance from any c ircuit in which any victim of medica l malpractice has seen hisor her a

ward of noneconomic dama

ges actually

reduced pursuant to this statute. Had sucha reduction occurred, it would be easy to identify . There would be a specific court order reduc ing the plaintiff’s recovery . That is so because , under the portion of section 330 of Pub lic Act 94–677 (Pub. Act 94–67 7, §330, e ff. Aug ust 25, 20 05) adding section 2–1706.5 to the Code of Civil Procedure, the court is prohibited from informing the trier of fact of the existence of the statutory ca

ps. The jury is therefore free to award a ny amount supported

by the evidenc e and the principles governing liability . The caps are implemented by the cour t only if the jur y’ s award exceeds t he statutory

maximum. Insome venues, the absence of affe cted judgmen ts may be attributa ble to counsel’s decision to forebear from proce eding to trial until they see how this ca se is resolved. I do not believe, how ev er, that this explanation can account for the apparently universal absence of ca ses in whic

h the statu

te has be en applie d to a plai n tiff’ s detrimen t. Opponents of the statutory c aps theorize that the caps are most likely to be

triggered where

substantial economic damages have been suf fered. I poin

t out later in this disse

nt that this

assumption

is flawed, butlet us assume for purposes of the present discussion that it is va lid. Given that resolution of this case could have no effect whatever on compensable economic damage s, recov ery of which is free from any statutory

maximums, and con sider ing the compelling financi a l incentives which alway s exist for recouping substantial economic losses as expeditiously as possible, I think it doubtful that every lawyer in e

very ser ious medical malpractice c ase in this state has refra ined fro m prosec

uting me ritorious claims for econom

ic damages merely bec ause of the prospe ct that the amount of

noneconomic damages his or her clients may recover may ultimately be subject to the caps at issue here. I n any eve

nt, whatever the explanation, one can

at least s ay

this: ther e is nothing in the record-41- before us today that would justify bypassing

the normal re quireme

nts fo r j us ti ci ab il it y. Under these c i rcumstances, the majority ’s rush to address the constituti onality

of Public Act 94–677 is not only inconsiste

nt with established

principle s of appe llate re view and judicial r

estraint , it violates a central require

ment impose d by

article VI, section 9, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. V I, §9). This is clear ly imp ermissible. We have no business telling the General Assembly that it has

exceede d its consti

tut ional pow er if we

must ignore the constitutional constraints on our own authority to do so. Even if I a gr eed that this matter was properly before us for a decisiononthe merit s, I c ould not concur in the majority’s opinion. The majority

bases its analysis on

that portion of this court’s decision in Best v. Taylor MachineWorks , 179 I ll. 2d 367 (1997), which found that the cap on

noneconomic damages contained in Public Act 89–7, eff. March 9, 1995, violated the separation of powers clau se of t he Illinois Constitution

of 1970 (I

ll. Const. 1970, art. II , §1). As Justice Bilandic noted in hi s s pe cial concurrence in Best , however, that opinion’s dis cussion of “the constitutionality of the damage’s cap und er the sepa

ration of powers d

octrine *** [was] wholly unnecessary

and constitute s dicta .” Best , 179 Ill. 2d at 471 (Bilandic, J., specially conc

urring). Dicta is no t b in di ng au th or it y. Geer v. Kadera
, 173 Ill. 2d

398, 4 14 (1996) . Even a “ judicial dictum” does notpreclude reconsideration of a point of law. Nothing in any of this court’s decisions
, including its recent decision Exelon Corp. v. Department of Revenue , 234 Ill. 2d 266 (2009), holds otherwise. Inote, moreover, that the legislation at issue here is substan tially different from Public

Act 89–7. Public Ac t 8 9 –7 was a comprehensive tort reform package which imposed limits on

noneconomic damages “[i]n all common law, stat ut ory or other actions that seek damages on account of de ath , bodily injury, or physical damage to propert

y ba sed on ne glige

nce, or p roduct lia bility based on any theory

or doc tri ne.” 735 IL CS 5/2–1115. 1(a) (We st 1996). By contr

ast, P ublic Act 94–677 represents an attempt by the General Assembly

to deal in

a focuse d an d particular way with the health-care crisis it believed was threatening the hea lth and welfare of our ci tizens.-42- A similar sit

uation wa s re cently fac ed by the Supreme Court of Ohio in Arbino v. Johnson &Johnson , 116 Ohi o St. 3 d 468, 2007- Ohio-6948, where it was called upon to consider the const itutionali ty of four tor t- refo rm statute s implemen ted by Ohio’s le gislatu

re in 2005

. The plaintiff in that case argued that the statutes we re functionally

e quivalen

t to laws wh

ich the c ourts had

previous ly invalidated

on, inter alia , separa

tion of pow ers gr

ounds, an d that, under stare dec isis , the court should be compelled to declare the new statutes invalid

for the same reasons. I

n rejecting that

argument, the court wrote:

“While stare decisis applies to the ruling s r endere d in regard to specific statutes, it is limited to circumstances ‘where the facts of a subsequent case a re substantially the

same as a former case.’ [Citation.] We wi ll not apply stare decisisto strike down legislation enacted by the General Assembly merely because it is similar to previous enactme nts that we ha

ve deeme d unconsti

tutional. To be covered by the blanket of stare decisi s, the l egisla

tion must be

phrased in langua ge that

is substantially the same as that which we have previously invalidated. A careful review

of the statutes at issue here reveals that they are more than a rehashing of unc ons ti tu ti ona l s tat ut es. In its con tinued pursuit of reform, the General Assembly has made progre ss intailoring its legislation to address the constitutional defects identified by the vario us majorities of this court. The statutes before us here are sufficiently different fromthe previous enactments to avoid the blanket application of star e decisis a

nd to war

rant a f resh re view of their individual merits.” Arbino v. J ohnso n & J

ohnson , 116 Ohio St. 3d 468, 2007-Ohio-6948, at ¶¶23-24. Inmy view, these conside rations militate in favor

of undertaking

a newanaly sis, independent of what we may have said in Best , regarding validity of the damag es caps established by section 330 of Public Act 94–677. However, even if I accepted, for the sake of argume nt, that the rationale of Best

was otherwis e contro lling, I still could not join the majority’s opinion. The doctr in e of stare dec isis is never an inexorable command. When it is clear a co urt has made a mistake , it will not d ecline to-43- correct it, even if the mistake has been

reasse rted and acquies ced in for many y ears. People

v. Colon , 225 Ill. 2d

125, 146 (2007). Indeed, while adherence to stare dec isis is important to the stability of the law, w hen d oubts are raised in the mind of the court as to the

correc tness of a prior decision , it is the c ourt’s duty to reexamine the question involved in the prior case. Doggett v . North Ame

rican life Insurance Co. of Chicago , 396 Ill. 354, 36 0-6 1 (1947). Good cau se exists to depar

t from stare de cisis when serious detriment to the public inte

rest is otherwise

likely to result or where

the prec edent is poorly rea soned or has proven unworkable. Tuite v. Corbitt, 224 Ill. 2d 490, 506 ( 2006). As

s o defin ed, goo d cause e xists to reje ct this court’s separation of powers analy sis in Best

. Best ’s conclusion that legislative caps on noneconomic damages offend the sepa

ration of powers c lause of

the I llinois Cons titutio n rests entirely

on the noti on that suc

h caps ar e th e equival ent of a remittitur, which courts alone hav e the au thority to gra nt. For the reasons which follow, this proposition is untenable. First, remittitur

is not a power specifically vested in the courts by

our consti tution o r the Constitution of the United States. It was introduc ed into American jurisprudence by Justice Story in Blunt v. Little
, 3 F. Cas. 760 (D. Mass. 1822 ), a cas e he dec ided while sitting

oncircuit i

n the fed eral d istrict c ourt in Massachusetts. While the doctrine has ga

ined acc eptance

inmost United Sta

tes jurisd ictions, it has itself been challenged as an unconstitutional abridg ment of th e right to trial by jury . See Dimick v. Schiedt , 29 3 U. S. 474 , 48 4, 7 9 L. Ed. 603 , 61 0, 55 S. Ct. 296, 300 (1935) (recognizing validity of doctrine based on historical practice in the federa l courts after

1822, butobserving that “it *** may be that if the question of remittit ur
were now before us for the first

ti me, it wo uld be decided otherwise”). Debate over the proprie ty of judicial remittitur has been recurr ent. As recently a s 1985, for example, the doct rine of remittitur was abolished in Missouri by

that state’s supreme court, which noted that its “application in the appellate courts has been questioned

since its inceptioninMissouri a s an invas ion of a pa rty ’s righ t to trial by jury and an a ss umption of a power to weigh the evidence, a function reserved to the trier(s) of fact.” Firestone v. Crown Center Redevelopment

Corp ., 693 S.W.2d 99, 110 (Mo. 1985). The doctrine-44- exists in that state today

only because it was subsequently authorized by the Missouri legislature. See Myers v. Morrison , 822 S.W.2d 906, 910 (Mo. App. 1991). The view take

n by the major ity i n this cas e that

judicial remittitur

en jo ys special constitutional protect io n is therefore unsupported by the doc trine ’s origins and history . If any thing, the opposite is true. The doctrine i s constitution ally suspect. Acc ordingly, while r emittitur may sometimes be em

ploy ed by I

llinois courts, it cannot, in any meaningful wa y, be viewed as an essential component of the judicial power vested in those courts by the Illinois Constitution of 1970. Second, the majority’s analy sis perpetuates the misconception, followed in Best , that legislativel

y imp osed limits

on damag es in

civil

cases are com

parable to traditional judicial r

emittiturs . They

are not. When a court reduces a jury award to comply w

ith a stat ut ory damages cap, it is in no sense reexamining a jury ’s verdict or imposing its o wn fact ual de termi natio n rega rding what a proper award might be . Rather, it is sim ply impl ementing “a legislative policy decision to redu ce the amount recoverable to that which the legislature deems reasonable.” See Estate of Sisk v. Manzanares , 270 F. Supp. 2d 1265, 1277-78 (D. Kan. 2003); see also Myers v. Central Fl or ida Investments, Inc ., No. 6:04–cv–1542–Orl–28DAB, slip op. at 20 (M.D. Fla. October 23, 2008). Because re duction of an awar d to comport with leg al limits doe s not in volve a s ubstitution of the court’s judgment for that of the jury , but rather is a determination that

a higher award is not permit

ted as a matter of

law, it is not a

remittitur at all. See Johansen v. Combustion Engineering, Inc ., 170 F.3d 1320, 1330-31 (11th Cir. 1999). Justice Miller correctly

recognized this point

in his partial dissent in Best. See Best , 179 Ill. 2d at 481 (Miller, J., concurring in part a nd dissenting in part). State courts of review considering da mages caps inthe w ake of Best

have uniformly re ached the same conclusion. Rejecting Best , they

have held that such caps are distinguishable fr om judicial remittitur

s and con stitute a l egitima te exercise of legislative power. See Arbino v. Johnson & J ohnson , 116 Ohio St. 3d 468, 2007- Ohio-6948, at

¶¶73-76 (statutor y lim it on nonec onomic da

mages d id notexceed legislature’s power and impermissibly intrude on judicial power to decide damage s); Garhart v. Columbia/Healthone, L.L.C. , 95 P.3d 571, 581-82 (Colo. 200 4) (“[ w]e *** join those states that-45- have upheld da

mages c aps as not

infring ing impe

rmiss ibly on the judicial role in the separation of powe rs”); Rhyne v. K-Mart Corp.
, 358 N.C. 160, 168-69, 594 S.E.2d 1, 8 (2004) (statutory da mages
c aps are a proper exercise of legislature’s policymaking author it y, an d b ecau se they do not gr

ant the legislature the authority to reduce excessive awards on a case-by -ca se b asis, they are

not a form of remittitur); Judd v. Drezga , 2004 UT 91, ¶38, 103 P.3d 135 (statutory cap on nonec onomic da

mages u pheld ag ainst se

p aration of powers chall enge on the grounds that it was a p ermissible exercise of the legislature’s power to declare what the law shall be, not an improper usurpationof the judiciary’ s function to decide controversies); Gourley v. Nebras

ka Metho dist Healt

h S ystem, Inc. , 265 Neb. 918, 956, 663 N .W .2d 43, 77 (2003) (da mages c ap does not act as a legislative remittitur

or otherwise violate principles of separation of powers because it does not ask leg islature

to review a

specific dispute and determine the amount of

damages. I

nstead–without regard to the facts of a p articula

r case– the cap i mposes a l imit on rec overy in all medical malpractice ca ses as a matter of legis lativ e policy

); Waste Disposal Center, Inc. v. Larson , 74 S.W.3d 578, 590 (Tex. App. 2002) (legis la tur e had au thority under sta

te constit ution to impo se statutory damages cap and such ca p is not an impermissible limit on judiciary’s

constituti onal powe

rs or juri sdiction) ; Evans v. State , 56 P. 3 d 1046, 1055 (Alaska 2002) (“damages c aps cannot violate the separation

of powers, be c ause the caps do not constitute a form of remi t titur”); Zdrojewski v. Murphy , 254 Mich. App. 50, 82, 657 N.W.2d721, 739 ( 2002) (st atutory limit on nonec onomic da

mages i n medical malpractice action s w as legitimate exercise of legislature’s authority to enact substantive law and did not imper miss ibly inf

ringe

on p ower of the judiciary to instruct jury and provide for um fo r redres s of grie

vances) ; Ve rba v. Ghaphe ry , 210 W. Va. 30, 35, 552 S.E.2d 406, 411 ( 2001) (le gislatu re ma y set re asonable limits on damage caps incivil actions without violating separation of powers principles); Kirkl and v. Blaine County Medical Center , 134 Idaho 464, 471 , 4 P.3d 1115, 1122 (200 0) (statu tory cap on noneconomi c damages does not impermissibly infringe on the judiciary’s traditiona l power of remittitur and was within the legislature’s power to enact); Guzman v. St. Fr ancis Hospital, Inc. , 2001 WI App. 21, ¶17, 240 Wis. 2d 559, 623 N.W.2d 7 76 (statu te setting cap on noneconomi c-46- damages does not interfere with court’s discreti on to order remittitur, and legisl ature’ s acti on in adopt ing damag es cap do es not viol ate separation

of powers); Owens-Corning v. Walatka , 12 5 M d. App. 313, 335-39, 725 A.2d 579, 590-92 (1999) (it is within the power of the legislature to enact statutory caps, and such caps do not interfere with a litigant’s right to a jury trial or infri ng e upon the judiciary’ s control over cou

rt proce edings) ; Pu llia m v. Coastal Emergency Services of Richmond, Inc. , 25 7 Va. 1, 21-23, 509 S.E.2d 307, 319 (1999) (legis lativ e dam age caps do not invade the province of the judiciary). Ina law review note written shortly after Best

w as deci ded, a studentat Northwestern University Law Sch ool opined that the court’s remittitur analysis offer ed “a powerful new weapon in the arsenal of tho se opp osed t o dama ge s caps.” Note, Best v. Taylor Machine Works, The Remittitur Doctrine, and the Implications for Tort Reform , 94 Nw . U.L. Rev. 227, 272 (1999). As the foregoing discussion suggests, however, the wea pon has proved to be a dud. Withthe exceptionof the majority’s opinion today, Best ’s remittitur analy sis has not onl

y be en reje cted by

the fede ral cour ts, it has failed to carry the day in any

reported deci si on in an y other state in the United States since it was filed 12 ye ars ago. The majority makes the point that we should not follow a particular course of condu ct merel y because “every

body is doing it.” Slip op. at 22. This is sound advice indeed, and I ha ve a lway s encouraged

my ch il dre n t o fo ll ow i t. Her e is ano th er u sef ul ti p: “It

can be no dishonor to learn from others when they spea k good sense.” Sophicles
, Antigone (trans. E. Wyckoff ). In my opinion, the view taken by the other states a

nd by t he federal courts, namely, that statutory damag es caps ar e not equi valent to remittitur , is eminently sensible and should

be adopte d in Il linois. The separa tion of powers analy sis in Best is flawed for another

reason as well. It fails to acknowledg e the legislature’s constitutional power to m ake, amend , alter and abolish the laws of this state. See Waste Disposal Center, Inc. v. Larson , 74 S.W.3d at 590. The power of our legislature to chang e the law

is not limite d to laws enacted by

the General Assembly

itself. It also e xtends to the common law. Our

Common Law Act (5 I

LCS 50/0.01 et seq. (West 2008)) expressly

provides :-47- “The common la

w of Eng land, so f

ar as t he same i s applica ble and of a general

n at ure, and all statutes or acts of the British parliament made in aid of, and to sup ply the defect s of the common

law, prior to the fourth year of James the First, excepting the second section of the sixth chapter of 43d Elizabeth , the eig

hth chapt er of 13t h Elizabeth, and

ninth chapter of 37th Henry Eig

hth, and which are of a gene ral nature and not

loca l to that kingdom, shall be the rule of decision, and shall be con sidered as of full force until repealed by legisla tive auth ority .” (Empha sis added.) 5 ILCS 50/1 (West 2008). Legislative

authority in Illinois is vestedinour Gene ral Asse mbly . Ill. Const. 1970, art. IV, §1. Consistent with these principles, it has long been rec ogn iz ed t hat “[ t] he Il li nois General Assembly has the inherent power to repealor chan ge the common law, or do away with all or part of it.” People v. Gers ch , 135 Ill. 2d 384, 395 (1990); Michigan Avenue National Bank v. County of Cook
, 191 Ill. 2d 493, 519 (2000). Indeed, our legislature has been “forma lly recog nized as having a superior position to that of the courts in e sta blishing

commonlaw rules of decision.” People v. Gersch
, 135 Ill. 2d at 395. Inaccord ance wi th its plac e in our c onstitutional and statut ory order, the legislature possesses broad discretion to determine whether

a proposed statute w hich woul d

restrict or alter an

existing r emedy is

reasona bly necessary to promote the general welfare

. Bil yk v. Chica

go Transit Authority , 125 Ill. 2d 230, 245 (1988). It may not exercise that discretionin a way whic h is notra tionally

related to a leg itimate government

interest . As the ma

jority points o ut, however, whether there is a rational basis for da mages c aps was not part of Best ’s separation

of powers analysis and is not releva nt to the question before us today . Slip op. at 14-20. Limitation or abolition o f c ommon law remedies by the legislature sometimes triggers challenges under article I , section 12, of the Illinois Cons titution, w hich prov ides: “Every person shall find a ce

rtain re medy inthe laws for

a ll injuries a

nd wrong s which he

receiv es to his person , pr iv ac y, property or r

eputation. He shall obtain justice by law, fr ee ly, completely, and promptly .” Ill. Const. 1970, art. I, §12.-48- The courts have he ld, ho wever, that even this provision does not prevent the legislature from doing such things a s limiting

the time within which an action ma

y be brough t, even if the statute could have the effect of barr ing a party’s ca use of action

before the discovery

of the ground

for it; elevating the standard of care for tort liability from ordinary neglig ence to w

ilful and wanto n n eglig ence; or , most important ly for this case, restricting the ty pe or amount of damages

a party may

recover. Bilyk v . Chicag o Transit Aut hority , 125 Ill. 2d at 245. The majority

posits that the authority

which the

legisla ture wou ld otherwis e have to chang e the com mon law is c onstrained in this case by the separation of powers doctrine. For the r easons previ o usly discussed, however, the cap on non ec onomic damages imposed by section330 of Public Act 94–677 in no way usurps the powe r of the ju di ci ar y. It is an altogether pr oper exercise of the legislature’s authority to chang e th e co mmon law. Given that the leg islature

is fully empowered

to alter c ommon law r

emedies , it

cannot contravene separation

of powers principles when it exercises that power asit did in this case. See Kirkland v . Blaine Co unty Med

ical Cente

r , 13 4 Idaho at 471, 4 P.3d at 1122 (“[b]eca use it is properly within the power of the le gislatu

re to establish statutes of

limitations, statutes of repose, cr ea te ne w c au se s o f a ct io n, an d o th er wi se mo di fy t h e
commonlaw wi t hout viola ting sep aration

of powers princip les, it

necessa rily follows that the leg

islature also has t

he power to limit remedies availabl e to plaintiffs without violating the separation of powers doctrine”). Faced with universal rejection of Best ’s separation of powers analy sis, the major

ity c lings tothe decision based on the principle that

“ ‘[t]his court’s jurisprudenc e of state constitutional law cannot be predicated

on *** the actions of our sister states ***.’ ” Slip op. at 23. But the passage they

cite, which is f

rom People v. Caballes , 221 I ll. 2d 282, 313 (2006) ( Caballes II ), is take n out of context. At issue in Caballes was whether a canine sniff constituted a “searc h” within the meaningof the Illinois C onstitu tion. While some other states had found that canine sniffs were searche s unde r their constitutions, the United States Supreme Court declare d that th ey do not constitute a search for purp oses of th e fourth amendment to the United States Constitutio n

. Caballes II reaffirmed that I llinois follows a limited-49- lockstep approac

h and th at unde r that approach, the search and seizure provisions of the Illinois Constitution are to be interpreted the

same way as c orrespondingpr ovisions of the federal constitution. Caballes , 221 Ill. 2d at 315. Inreachi ng this c onclu sion regarding the rela tionship between cogna te provisions of the Illinois and federal c onstitutions, we relied both on prior Illinois precedent and on the rec ognition

that, in the end, it is the intent of the framers of the I llinois Constitution of 1970 and those who adopt

ed it whic

h control s our inte

rpreta tion of its provision s, including

whether those provisions ar

e to be interpreted

more expansive ly

thanfederal law. Caballes , 221 I ll. 2d at 31 3. It i s becau se the int ent of the framers and the voters who approve d the constitution must always be the g uiding factor in construi ng tha t document that we made the statement, abbreviat ed by th e m aj or it y, that our “jurisprudence of

st ate constitutional law cannot be predicated

on trends in legal scholarship, the acti ons of our sister states, a des ire to br ing about a change in the law, or a sense of deferenceto the nation’s highest court.” Caballes , 221 Ill. 2d at 313. Inthe matter before us, no one is suggesting that our view of the separation

of powers c lauseof the Illinois Constitution be predicated

onanything othe

r than the intent

of those who framed and adopted the C onstitution. The preeminence of that intent, however, do es no t preclude reference to how other court s have analyzed similar provisions under

similar circumstances. In interpr eting and applying the law of Illinois, our court regularly considers how courts in other jurisdictions have construed similar provisions of their law. See, e.g. , People v. Pawlaczyk

, 189 Ill. 2d 177, 195 (20 00); P.R .S. Internat i on al, Inc. v. S

hred Pax Corp ., 184 Ill. 2d 224, 238-39 (1998); Committee for

Educational Rights v. Edgar , 174 Ill. 2d 1, 29- 30 (1996); People ex rel. O’Malley v. 6323 North LaCrosse Ave ., 158 Ill. 2d 453 (1994); People v . We gielnik , 152 Ill. 2d

418, 426 (1992); Bernier v. Burris , 113 I ll. 2d 219 ( 1986); People e x re l. Latimer v. Board of Educati

on of the Cit

yof Chicago
, 394 Ill. 228, 236 (1946). Moreover, as the foregoin g a uthorities demonstrate, we have found it appropriate t o consider the well-reasoned decisions of other jurisdictions not only when interpretingstatutory

provision s, but also when examining the protections afforded by the Illinois Constitution. We do this not because the views of the o ther states are in any way-50- contr olli ng, but s i mply because the points they make may

provide insight into the intent of those who dr afted and approved our own laws. No principle

of appellate review

bars us f rom follow

ing that same
course here. Contrary

to the apparent

view of the majority

, taking into account how other

state co urts have dealt with simila

r lega l issues in similar circumstances is no threat to Illinois’ sovereignty or the authority of I

llinois’ courts. It is simply good sense. Insummarizing the court’s decision in Best , the majority repeated the argument made by

the plaintiffs in that case that caps on noneconomic damages were ob

jectiona ble beca use they “impermi ssibly penalized the most severely injure d persons.” Slip op. at 9. A similar sentimenthas been expressed with regard to the damages cap at issue inthis case . It is

a moving appeal t o the human desire to provide for those inneed. But at some point one must ask: is it true? Whether and to what extent a person sustains noneconomic injury is affe cted by many factors besides the severity of the phy sical harm he or she has suffered. In so me case s, such as high wage ear ners whose injuries force them to miss work, major economic damag es ma y be

ac companied

by relatively

modest noneconomic loss. In othe r instance s, a less serious but more traumatic injury may re sult in significant

noneconomic damage but relatively minor economic

loss. The total dama

ges und er both sc enario s c ould be similar, yet the extent of th e u nd er lyi ng ph ysi ca l i nj ur y coul d be substa ntially differe nt. Contrary to the

assumption

of those w

ho oppose Public Act 94–677, there would be no direct correlation betwee n mag nitude of the phy sical inju

ry and the si ze of none conomic loss sustained. As a result, application of the damages cap would not ne cess aril y p enal ize the most se

riously injured p laintiff

s. Of course, it is not diff

icult to imagine situations in which a

severe injury is accompanie d by both h eav y economic losses and profoun d noneconomic damages. I f the cap on noneconomic damages is truly problema

tic, howe ver, one would expect to s ee situa

tions in whichits application has resulted in hardship. That has not happened. As I pointed ou

t earlie r in this dis sent, we

have y et to see a sin gl e instance in which the caps have even bee n triggered. One must also wonde r whe ther opponents of caps on

noneconomic damage s have fu lly c onsidere d the possi ble-51- consequences of declaring imposition of

such caps to be bey

ond the legislature’s authority. What the majo rity does not se e or fai ls to ackno wledge is that by focusing on the fortunes of ind ividual plaintiff s, it looks at only

a small part of

the economic landscape. The cap on noneconomic damages is premised onthe assumption that the potential for unlimited awards of such damages will imperil the availab ility

of medic al care to

the popula

tion as a w

hole. The re is nothing in the record in this case by whichwe can ascertain whether this assumption will prove correct in practice, but we cannot say

the assumption is an unre asonable one. I f it is correct, the cumulative harm from reduc ed acce ss to medic al treat ment coul d easily overshadow

the bene fits a fe w indi

vidua l plai ntiff s stan d to re alize fromabolition of damages caps. Should that happen, the equities will look far differe nt than opp onents of

the caps have por tray ed them. Faced with this prospect, the General Assembly may respond

to today’sdecisionby eliminating all noneconomic damages in medical malpractic e ca ses. Nothing in the majority’ s separation of powers analy sis would pre clude it f rom doing

so. I ndeed, the legis latu

r e could, withoutviolating separation of powers principles, go so f ar as to abolish civil actions for medical malpractice comple tely and replace them with a claims system compara ble to the one i t has established

for wo rkers c ompensat

ion. I f the majority

persists i

n invalidating damages caps, the legislat ure may be left with no alternative. If ou

r legis lature f

ails to act, while c aps are

eliminate d in other states, im

position of

restrictions by

the fede ral gov ernment , whichwould

not be con strained

by s tate con stitutiona

l provision s, is

a possibility. For those committed to insuring that victims of medical malpractice receive the maximum possible compens ation for their injuries, these loo m as sober ing possi bilities. Illinois and the country a re at a crossroads in thede epening struggle to manage the health-care crisis. As the legislative branch experimen

ts wi th workable solutions, the courts must be vigilant about ensuring th at t he laws e

nacted by th e Gener

al Assemb ly comport with constitutional requirements. In exercising our a ut ho ri ty, however, we must remain mindful that the constitution constrains the courts a s well. In his partial dissent in Best , Justice Miller lamented that-52- “[t]oday’s de cision re

present s a substa

ntial dep artu

re from ou r precedent on t he respective roles of the legislative a nd judicial bran ches in shaping

the law of

this state . Stripped

to its
essence, the majority’s mode of analysis simply

constitutes an attempt to overrule, by

judicial fiat, the considered judgment of the leg is lature.” Best , 179 Ill. 2d at 487 (Miller, J., concurring in part and dissenting in part). Th e s am e i s t ru e o f t he co ur t’ s o pi ni on to da y. Our j ob is to d o justice under the law, not to make the law. Formulatingstatutory solutions to social problems is the prerogative of the leg islature . Whether

there is a solution to t

he healt h-care crisis is anyone’s g

uess. I a m certain, however, that if such a solution can be found, it will not come from the judicial branch. It is cr itical, therefore, that the c ourts not s tand as a n obstacl e to leg itimate e fforts by the leg islature

and other s to find an answer. If

courts exceed

their constitutional role and second-guess policy de termin ations by the General Assembly under the g uise of j udicial review, they not only jeop ardi ze the system of chec ks and balances on which our government

is based, th ey

also put a

t risk the welfare

of the pe ople the government was created to se rve. For all of the foregoing

reasons , I re spectfu

lly concur in part and dissent in p art.

JUSTICE GARMAN joins in this partial concurrence and partial dissent.