dissenting:
Jurisdiction is the cornerstone of the entire judicial process; without it, courts have no power to decide the merits of a controversy. The absence of jurisdiction is so serious that it is one of the few defects which cannot be waived even by consent of all the parties. As a result, courts themselves, at every level, have an obligation to raise the lack of jurisdiction sua sponte and to dismiss a pending action whenever it becomes apparent that jurisdiction does not exist. Accordingly, jurisdiction is not a fiction which can be created out of whole cloth. It cannot be manufactured, nor can its limitations be circumvented merely to suit the exigencies of the moment. Yet that is precisely what the majority does today. Because I cannot concur in my colleagues’ invocation of jurisdiction in this case, I must respectfully dissent.
This court has long recognized the distinction between a statute which is unconstitutional on its face and a statute which is unconstitutional as applied. In the former situation, the provision itself is invalid from its inception and has no force and effect upon any person or entity. In contrast, when a statute is deemed unconstitutional as applied, the statute itself is not invalid, but is simply not applied to a particular case because to do so would violate some superior constitutional right. This distinction is critical, particularly with respect to this court’s authority to entertain an appeal under Supreme Court Rule 302(a) (134 Ill. 2d R. 302(a)). That rule specifically limits our direct appellate jurisdiction to only those cases in which "a statute of the United States or of this State has been held invalid.” (Emphasis added.) 134 Ill. 2d R. 302(a). It is precisely because Rule 302(a) speaks in terms of invalidity, as opposed to application, that this court will not ordinarily entertain direct appeals in cases involving an "as applied” determination. Thus, in Rehg v. Illinois Department of Revenue, 152 Ill. 2d 504, 508-09 (1992), we held that an appeal from an order which does not declare a statute unconstitutional on its face, but simply declares that the application of the statute would violate a particular defendant’s constitutional right, "is properly brought in the appellate court pursuant to Rule 301.” Rehg, 152 Ill. 2d at 509. In support of that conclusion, we stressed that "[s]uch an [as applied] order does not declare a statute unconstitutional,” nor does it "invalidate” the statute for purposes of Rule 302(a). Rehg, 152 Ill. 2d at 509. We ultimately reached the merits of the controversy in Rehg under Rule 302(a), but only because the circuit court had also declared the Tax Act "unconstitutional on its face.” Rehg, 152 111. 2d at 509. The circuit court did not make such a ruling in this case.
In the present case, the circuit court declared sections 10 — 1 and 10 — 10 of the Public Aid Code unconstitutional as applied. Specifically, the circuit court held:
"It is therefore ordered, that the statutory provisions relied upon and cited herein, while not unconstitutional in the absolute sense, would lead to an unconstitutional result in the instant case, and accordingly the Order of August 1, 1995 granting the State’s Attorney leave to intervene is set aside, and said Motion for Leave to Intervene is denied.”
Consequently, because the circuit court did not find sections 10 — 1 and 10 — 10 facially unconstitutional, but only found that the provisions would, in some way, lead to an "unconstitutional result” as applied, this court lacks direct appellate jurisdiction under Rule 302(a), as interpreted in Rehg.
Notwithstanding the above, the majority declares that it "must look, however, to the effect of the circuit court’s order to determine whether the order actually declared the statutory provisions unconstitutional on their face” for "[i]f the effect of the circuit court’s order was to declare a statute unconstitutional on its face, this court has jurisdiction under Rule 302(a)(1).” 176 Ill. 2d at 420. Applying this rationale, the majority concludes that sections 10 — 1 and 10 — 10 were, "in effect,” unconstitutional on their face despite the fact that the circuit court had clearly ruled that they were unconstitutional as applied. 176 Ill. 2d at 422. My colleagues reach this conclusion because, in their view, the circuit court’s order could be applied to any person "financially capable” of pursuing child support without the assistance of the Department. 176 Ill. 2d at 422. I find this conclusion untenable.
I recognize, of course, that a determination that a statute is "unconstitutional as applied” may, under certain rare circumstances, be deemed a "<¿e facto” declaration of the statute’s invalidity for purposes of Rule 302(a). That situation, however, occurs only when the "as applied” ruling — although nominally pertaining to a particular person or set of persons — has the effect of rendering the statute unconstitutional as to all persons under all circumstances. For example, in Doe v. Gainer, 162 Ill. 2d 15 (1994), we entertained a direct appeal under Rule 302(a) from an order declaring certain sections of the Unified Code of Corrections unconstitutional as applied to a particular inmate. We did so because that particular inmate was representative of all inmates who could be affected by the statute in question. Thus, the "as applied” ruling was, for all intents and purposes, the functional equivalent of a ruling that the statute was facially unconstitutional. In contrast to Doe, the circuit court’s ruling in this case is only applicable to those individuals "financially capable” of pursuing child support without assistance from the Department. It is not applicable, however, to individuals who are "financially incapable” of pursuing such support. In fact, those persons may still receive Department assistance under sections 10 — 1 and 10 — 10, which remained valid as to them. Hence, because the provisions at issue remained valid as to some people, rather than "invalid” as to all people, we do not have direct appellate jurisdiction under Rule 302(a).
Significantly, the majority today fails to explain how an "as applied” ruling which is applicable to less than 100% of the persons contemplated by the statute constitutes the functional equivalent of facial declaration of invalidity. The majority also fails to explain what percentage of those persons must be so characterized in order for the circuit court’s ruling to be viewed as "in effect” a declaration of unconstitutionality on its face. Nor does the majority explain how this court (or the appellate court, for that matter) will ever be able to determine when that number is great enough to warrant this court’s direct appellate review. Indeed, I simply cannot fathom how such a determination can be undertaken — short of requiring parties in future cases to supply the reviewing court with statistical data which can establish the number of citizens potentially impacted by the "as applied” determination.
In view of these uncertainties, I am troubled by what I perceive to be the majority’s nonchalant invocation of jurisdiction in this case. As I noted at the outset of this dissent, jurisdiction is not a matter of judicial convenience, but the very basis of a court’s authority to decide the merits of a case. The majority offers little analysis in support of its decision to convert the circuit court’s "as applied” order in this case into a de facto declaration of invalidity for purposes of Rule 302(a). It offers even less guidance for determining when circumstances exist which justify making such a conversion. In fact, in failing to recognize this shortcoming, my colleagues have unnecessarily blurred the critical distinction between an "as applied” determination and a facial determination.
Finally, I view today’s interpretation of Rule 302(a) as not only unfortunate, but unnecessary as well. We are not confronted here with a situation where the controversy might remain unresolved absent action by this court. Jurisdiction to hear this appeal remains with the appellate court pursuant to Supreme Court Rule 301 (155 Ill. 2d R. 301). Furthermore, once the appellate court issues its decision, this court may grant further review under Supreme Court Rule 315 (155 Ill. 2d R. 315). The appellate court could even certify the matter for our review pursuant to Supreme Court Rule 316 (155 Ill. 2d R. 316). In view of these potentialities, I consider the majority’s decision, with all its attendant consequences, to be both unwarranted and improvident.
For all of the foregoing reasons, I respectfully dissent.
JUSTICE McMORROW joins in this dissent.