specially concurring:
I would like to suggest a supplemental argument supporting affirming the Department’s finding on the first issue that does not rely on case law from outside Illinois. The argument would be:
In enacting section 1396p(d), Congress closed a loophole in the MQT law that apparently permitted Medicaid applicants to do exactly what Mabel did here and what the new version of the law prohibits; specifically, a loophole through which applicants for Medicaid could place assets in trust then restrict the trustee’s authority to distribute those assets to maintain Medicaid eligibility. This court may not now judicially close the legislative loophole under the guise of statutory construction or interpretation of the terms of Mabel’s trust. See People v. Taylor, 221 Ill. 2d 157, 162-63, 850 N.E.2d 134, 137 (2006) (“We cannot, under the guise of statutory interpretation, remedy an apparent legislative oversight by rewriting a statute in a way that is inconsistent with its clear and unambiguous language”).
Mabel’s argument implicitly relies on this principle and is, essentially, that, fortuitously for her, the Department is limited in its actions and determinations to an application of the actual language of the Medicaid Act and its administrative language and may not act based on the spirit or intent of the law. The plain language of the law applicable to Mabel’s MQT restricts the Department to an examination of the trustee’s authority to distribute assets. The new law permits the Department to consider those assets as available “without regard to the purpose for which the trust was established, whether the trustee has or exercises any discretion under the trust, or whether restrictions are in place regarding when or whether distributions are made.” Gayan, 342 Ill. App. 3d at 1040, 796 N.E.2d at 661. The court has found that the new version of the MQT law is better aligned with the spirit of the Medicaid Act. See Gayan, 342 Ill. App. 3d at 1040, 796 N.E.2d at 661 (section 1396p(d) “is consistent with Congress’s intent to strictly limit Medicaid payments to the ‘truly needy.’ [Citation.]”).
However, our supreme court has made clear:
“[W]here a plain or literal reading of a statute produces absurd results, the literal reading should yield: ‘It is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers. *** If a literal construction of the words of a statute be absurd, the act must be so construed as to avoid the absurdity.’ [Citations.]
The principle that statutory language should not be construed to produce an absurd result is a deeply rooted one. Over 130 years ago, the United States Supreme Court interpreted a statute which, under its plain terms, made it illegal in all instances to obstruct the passage of mail or a mail carrier. The Court held that the statute did not apply to a sheriff who executed an arrest warrant against a mail carrier while he was delivering mail. In so holding, the Court cited two instances, both centuries old, where the plain language of a law was not followed because doing so produced an absurd result:
‘The common sense of man approves the judgment mentioned by Puffendorf, that the Bolognian law which enacted, “that whoever drew blood in the streets should be punished with the utmost severity,” did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit. The same common sense accepts the ruling, cited by Plow-den, that the statute of 1st Edward II, which enacts that a prisoner who breaks prison shall be guilty of felony, does not extend to a prisoner who breaks out when the prison is on fire — “for he is not to be hanged because he would not stay to be burnt.” ’ [Citation.]
More recently, Judge Posner has explained the rule that absurd results are to be avoided, even in the face of plain language:
‘Usually when a statutory provision is clear on its face the court stops there, in order to preserve language as an effective medium of communication from legislatures to courts. If judges won’t defer to clear statutory language, legislators will have difficulty imparting a stable meaning to the statutes they enact. But if the clear language, when read in the context of the statute as a whole or of the commercial or other real-world (as opposed to law-world or word-world) activity that the statute is regulating, points to an unreasonable result, courts do not consider themselves bound by “plain meaning,” but have recourse to other interpretive tools in an effort to make sense of the statute. [Citations.] They do not want to insult the legislature by attributing absurdities to it.’ [Citation.].” People v. Hanna, 207 Ill. 2d 486, 498, 800 N.E.2d 1201, 1207-09 (2003).
Here, a literal reading of the applicable regulation leads to an absurd result. Specifically, a literal reading would permit Mabel to accomplish exactly that which its drafters intended to prevent. That is, the sheltering of assets to create Medicaid eligibility. To apply section 120.346 literally in this case would allow the trust to accomplish the result it seeks, to shelter Mabel’s assets from any distribution that “will result in reduce [(sic)] public assistance,” but which it plainly seeks to prevent. Under the authority granted in Hanna, we turn to the intent of the MQT regulation and conclude that the drafters of the Medicaid Act and the Illinois regulations intended to prevent applicants for public assistance from sheltering their own assets to qualify for public aid.
In light of the legislators’ intent, and based on the record before it, I believe we must also conclude that the trust in question seeks to accomplish the prohibited result. Therefore, I believe we must agree that the assets in the trust are available to Mabel and, accordingly, are subject to the spend down provisions before Mabel qualifies for medicaid assistance.