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March 11, 1994



Released for Publication April 19, 1994. Petition for Leave to Appeal Denied June 2, 1994.

Murray, Gordon, McNULTY

The opinion of the court was delivered by: Murray

PRESIDING JUSTICE MURRAY delivered the opinion of the court:

Defendant, Michael Reese Health Plan Foundation (MRHP), was named as a party defendant in a medical negligence action brought by plaintiff, Beatrice McMichael (McMichael), as administrator of the estate of Brittany McMichael, deceased. MRHP moved to dismiss the complaint against it on the grounds that it was immune from liability in medical negligence actions pursuant to section 26 of the Voluntary Health Services Plans Act (hereafter VHSPA or the Act). (See Ill. Rev. Stat. 1987, ch. 32, par. 620.) MRHP contended that the 1988 amendment to section 26 of the Act, which revokes the immunity previously granted to all VHSPA corporations except one (Union Health Services), is unconstitutional because it constitutes special legislation.

The trial court denied MRHP's motion to dismiss, but upon MRHP's request, certified the following question for interlocutory appeal:

"Whether the 1988 amendment to § 620 (sic) of the Voluntary Health Services Plans Act (VHSPA), purporting to eliminate the existing statutory immunity for all voluntary health service plans except those incorporated prior to January 1, 1965, and not owned or controlled by a hospital, is unconstitutional under the prohibition against special legislation in the 1970 Illinois Constitution (Ill. Const. (1970), art. IV, Sec. 13) and the guarantees of due process and equal protection of the law set forth in the Illinois and U.S. Constitutions (Ill. Const. (1970), art. I, Sec. 2; U.S. Const. Amendment 5, Amendment 14)."

As required by Supreme Court Rule, the trial court found that there was substantial grounds for a difference of opinion and that resolution of the matter would materially advance the litigation. This court then granted MRHP leave to appeal on December 22, 1992, pursuant to Supreme Court Rule 308. (Ill. Rev. Stat. 1991, ch. 110A, par. 308.) We now dismiss the appeal as improvidently granted.

Before addressing the dismissal of this appeal, we shall first discuss a jurisdictional challenge raised by plaintiff. Plaintiff McMichael alleges, for the first time on appeal, that both the trial court and this reviewing court lack jurisdiction to consider the constitutionality of the 1988 amendment to the VHSPA for two reasons: (1) because, allegedly, MRHP failed to notify the Attorney General, pursuant to Supreme Court Rule 19 (Ill. Rev. Stat. 1991, ch. 110A, par. 19), that it was attacking the constitutionality of a statute affecting the public interest, and (2) because MRHP did not join, as parties to the action, all other health plans incorporated under the VHSPA.

We find that these arguments have no merit for several reasons. First of all, McMichael never raised these issues until she included them in her appellate brief. McMichael never filed a motion to compel compliance with Supreme Court Rule 19 in this or any other court, nor did she object to MRHP's motion to dismiss on the grounds that notification to the Attorney General was required. In addition, McMichael never objected to MRHP's motion to dismiss, claiming that other VHSPA corporations were necessary parties to the litigation. These omissions are grounds for the application of waiver. In re Custody of D.A. (1990), 201 Ill. App. 3d 810, 558 N.E.2d 1355, 146 Ill. Dec. 1021.

In addition, McMichael's appellate brief is totally devoid of any authority or argument in support of her contention that failure to comply with Supreme Court Rule 19 is jurisdictional. Nor does she provide this court with any case law or argument in support of her allegation that other VHSPA corporations are necessary and indispensable parties. Furthermore, McMichael does not even attempt to distinguish authority which rejected a claim that a constitutional challenge was waived and not reviewable due to a failure to notify the Attorney General. (See In Re Custody of D.A..) Consequently, we deem both these issues to be waived and not properly before this court. See Faulkner-King v. Department of Human Rights, (1992), 225 Ill. App. 3d 784, 587 N.E.2d 599, 167 Ill. Dec. 330, mere contentions without providing citations to authority or argument do not merit consideration on appeal.

Despite our finding of waiver of these issues, we note that jurisdiction is vested in this court pursuant to Supreme Court Rule 308 and there is no basis for finding that a party's failure to comply with Supreme Court Rule 19 divests this court of jurisdiction to consider an appeal. According to the committee comments following the rule, Rule 19 was adopted effective August 1, 1986, as a parallel to Federal Rule 28, U.S.C. § 2403 (1982). The purpose of the rule is to provide a representative of an appropriate governmental agency with notice that the constitutionality of a statute, ordinance or administrative regulation affecting the public interest is being called into question so that the representative may apply to intervene. The statute imposes no obligation on the representative to intervene, however, and a court is not precluded from proceeding if the representative fails to do so.

As an aside, we also note that MRHP has supplied this court with evidence that Supreme Court Rule 19 has been complied with. MRHP's reply brief contains copies of two letters: (1) a letter MRHP sent to the Attorney General, dated January 25, 1993, in which MRHP notified the Attorney General of this matter, and (2) a letter from the Attorney General, dated February 25, 1993, in which the Attorney General declines to intervene in the action. Consequently, it is clear that the matter of MRHP's compliance with Rule 19 is a non-issue.

We now turn our attention to the appeal before us. As stated earlier, this is a permissive interlocutory appeal brought pursuant to Supreme Court Rule 308. As such, it is an exception to the general rule that appeal may be had only from final judgments. Consequently, the appeal must be strictly limited to the question certified by the trial court and this court should not expand upon the question to answer other issues that might have been included. Jones v. City of Carbondale (1991), 217 Ill. App. 3d 85, 576 N.E.2d 909, 159 Ill. Dec. 986; State ex rel. Skinner v. Lombard Co. ...

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