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June 20, 1996


The Honorable Justice Freeman delivered the opinion of the court: Justice McMORROW, dissenting: Chief Justice Bilandic joins in this dissent.

The opinion of the court was delivered by: Freeman

The Honorable Justice FREEMAN delivered the opinion of the court:

This appeal is from a circuit court order containing a judgment which, in part, declared a provision of the Illinois Parentage Act of 1984 unconstitutional. See 134 Ill. 2d R. 302(a). We remand the cause with directions.


In 1991 Barbara Trent filed a paternity suit against Ralph Winningham. Trent alleged, and Winningham later conceded, that he fathered a son born to Trent four years earlier. Part of the relief that Trent sought was retroactive child support under section 14(b) of the Parentage Act (750 ILCS 45/14(b) (West 1992)).

The trial judge denied retroactive support for three reasons: Trent was not entitled to it; Trent's claim was time-barred; and section 14(b) was unconstitutional anyway because it violated federal and State equal protection guaranties. The trial judge himself had suggested to the parties that the section might be unconstitutional and asked them to brief the issue. His reasoning: the section caused unwed fathers to be treated differently from divorced fathers who, under the Illinois Marriage and Dissolution of Marriage Act, did not have to pay similar support.

The other grounds for the denial of support did not turn on finding the section unconstitutional. Denial of Trent's claim on the merits actually followed consideration of factors directed by section 14(b). As for being time-barred, the trial judge characterized Trent's claim as one for her own reimbursement of child-rearing expenses, a claim which the Parentage Act required to have been made within two years of her son's birth. 750 ILCS 45/8 (West 1992).

The Cook County State's Attorney, who had argued on Trent's behalf for the constitutionality of section 14(b), appealed. So did the Illinois Attorney General who had intervened (see 134 Ill. 2d R. 19) to represent the State's interest in upholding the section. Both asserted that a direct appeal lay to this court because section 14(b) had been held unconstitutional. See 134 Ill. 2d R. 302.

The State's Attorney's opening brief argues not only that the trial judge was wrong to find the section unconstitutional but also that retroactive relief should not have been denied for either alternative reason given. The brief also challenges a different aspect of the trial judge's order. Retroactive child support was only part of the relief Trent had sought. The order also contains a current support award. The State's Attorney argues that the level of current support was set too low because the trial judge failed to consider the child's best interests.

Winningham has moved to strike that part of the State's Attorney's brief. We decided to dispose of the motion in the course of this appeal.


Winningham is right to argue that whether the trial judge ignored some factor in awarding current support has nothing to do with Trent's retroactive support claim. And it is the claim for retroactive support that spurred consideration of section 14(b)'s constitutional validity upon which our jurisdiction hinges. But Winningham's argument suggests larger procedural concerns. The concerns would indicate that the motion should be denied except that the same concerns make disposition of the motion itself unnecessary in the end.

Supreme Court Rule 302 is a principal means by which this court fulfills its constitutional supervisory role; the rule calls for direct review in certain kinds of cases. See Ill. Const. 1970, art. VI, ยง 16 (granting this court supervisory authority to be exercised through the court's own rules); see 134 Ill. 2d R. 302(a), Committee Comments, at 233 (stating that this court "should be the forum for the decision of important questions which affect the public interest or are otherwise of importance and general applicability"). Jurisdiction here is based on Rule 302(a), which commands that "appeals" from "final judgments of circuit courts shall be taken" directly to this court "in cases in which a statute of *** this State has been held invalid." 134 Ill. 2d R. 302(a).

Circumstances triggering Rule 302(a) technically exist: section 14(b) was held to be unconstitutional in a final judgment of a circuit court. Our jurisdiction would be nonproblematic had the case involved only denial of retroactive support solely because the section was ruled unconstitutional. Complicating matters are the alternative, nonconstitutional reasons given for denying the support and the aspect of the case concerning current support.

Rule 302(a) is not expressly designed to confer interlocutory jurisdiction. And so the intended scope of review is not really one tailored to particular issues, as with Rule 304(a); jurisdiction under Rule 302(a) extends to "cases." In this particular case, jurisdiction exists only because of the part of the trial judge's order holding section 14(b) to be unconstitutional. The jurisdiction, however, is not limited to that issue but encompasses the entire final judgment as set out in the circuit court order. Finding section 14(b) to be unconstitutional here was like letting the proverbial camel's nose into the tent; that done, it is impossible to keep out the rest of the beast. The alternative reasons for denying retroactive support as well as the argument that the trial judge ignored a factor in setting the amount of current support are issues that the order unavoidably presents.

Whether or not section 14(b) is, in fact, unconstitutional would not dispose of all concerns. True, if the section were, as the trial judge ruled, unconstitutional, it would be immaterial that alternative reasons existed for denying retroactive support. Those reasons could be ignored. But the argument concerning current support would remain. If the section turned out to be constitutional, it might be necessary to only consider one of the two alternative reasons for denying retroactive support to dispose of the case. But, again, the argument respecting current support would remain. In either situation, the nonconstitutional issues might be addressed by invoking the interests of judicial economy.

There are better reasons not to do so. The primary purpose of Rule 302(a) is to preserve stability in our legal system; when legislation has been held unconstitutional, the rule provides for immediate review by the ultimate authority in this State on the law. But courts are cautioned not to compromise that stability in the first place by declaring legislation unconstitutional when the particular case does not require it. See, e.g., People ex rel. Waller v. 1990 Ford Bronco, 158 Ill. 2d 460, 464 (1994), citing Exchange National Bank v. Lawndale National Bank, 41 Ill. 2d 316, 321, 243 N.E.2d 193 (1968). After all, existing legislation enjoys a presumption of constitutional validity. See People v. R.L., 158 Ill. 2d 432, 437, 199 Ill. Dec. 680, 634 N.E.2d 733 (1994). And even though facially unconstitutional legislation is void when enacted (see In re Contest of the Election for the Offices ...

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