                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           Kaider v. Hamos, 2012 IL App (1st) 111109




Appellate Court            DONALD KAIDER, Plaintiff-Appellant, v. JULIE HAMOS,
Caption                    DIRECTOR OF THE ILLINOIS DEPARTMENT OF HEALTH AND
                           FAMILY SERVICES; MICHELLE R.B. SADDLER, SECRETARY OF
                           THE ILLINOIS DEPARTMENT OF HUMAN SERVICES; DAN
                           RUTHERFORD, ILLINOIS STATE TREASURER; JUDY BAAR
                           TOPINKA, ILLINOIS STATE COMPTROLLER, Defendants-Appellees.



District & No.             First District, Fifth Division
                           Docket No. 1-11-1109


Filed                      July 20, 2012


Held                       Plaintiff was properly denied leave to sue to enjoin the disbursement of
(Note: This syllabus       state funds to pregnant women and children under the “All Kids” and
constitutes no part of     “Moms and Babies” programs if the recipients are not lawfully in the
the opinion of the court   United States, since Illinois opted out of the provision of the Personal
but has been prepared      Responsibility and Work Opportunity Reconciliation Act of 1996 barring
by the Reporter of         states from extending “any State or local public benefit” to aliens “not
Decisions for the          lawfully present in the United States” by enacting state laws affirmatively
convenience of the         providing for such eligibility, and the Illinois statutes are not impliedly
reader.)
                           conflict preempted.


Decision Under             Appeal from the Circuit Court of Cook County, No. 11-CH-08344; the
Review                     Hon. Leroy K. Martin, Jr., Judge, presiding.



Judgment                   Affirmed.
Counsel on                   Howard W. Foster and Matthew A. Galin, both of Foster P.C., of
Appeal                       Chicago, for appellant.

                             Lisa Madigan, Attorney General, of Chicago (Michael Scodro, Solicitor
                             General, and Brian F. Barov, Assistant Attorney General, of counsel), for
                             appellees.


Panel                        PRESIDING JUSTICE EPSTEIN delivered the judgment of the court,
                             with opinion.
                             Justices McBride and Howse concurred in the judgment and opinion.*



                                                OPINION

¶1           Plaintiff Donald Kaider appeals from the circuit court’s denial of his petition for leave
        to file a taxpayer’s suit to enjoin the disbursement of state funds under section 11-303 of the
        Code of Civil Procedure (735 ILCS 5/11-303 (West 2008)). In his proposed complaint,
        plaintiff seeks to enjoin the provision of health benefits to pregnant women and children who
        are not lawfully present in the United States under two state programs, “All Kids” and
        “Moms & Babies.” Plaintiff argues that providing benefits to pregnant women and children
        who are not lawfully present in the United States is prohibited by 8 U.S.C. § 1621(a), enacted
        as part of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996
        (Pub. L. No. 104-193, 110 Stat. 2105 (1996)), which generally bars states from extending
        “any State or local public benefit” to aliens “not lawfully present in the United States.” 8
        U.S.C. § 1621(a), (d) (2006). Defendants respond that the Illinois General Assembly opted
        out of the benefits bar pursuant to 8 U.S.C. § 1621(d), which allows a state to provide
        benefits to unlawful aliens1 “through the enactment of a State law after August 22, 1996,
        which affirmatively provides for such eligibility.” The circuit court agreed with defendants,
        finding that the General Assembly opted out of section 1621(a) pursuant to 8 U.S.C.
        § 1621(d). For the reasons that follow, we affirm.

                1
                  While 8 U.S.C. § 1621(d) refers to aliens “not lawfully present in the United States,” we
        shorten that rather bulky phrase to the term “unlawful aliens” in this opinion. See Martinez v.
        Regents of the University of California, 241 P.3d 855, 862 (Cal. 2010) (noting that terms such as
        “ ‘illegal alien’ ” may be pejorative to some, who prefer the term “ ‘undocumented immigrant,’ ” but
        using the term “unlawful alien” in order to remain “neutral, yet as accurate, as possible,” with regard
        to the statutory language).

                *Justice Joseph Gordon participated in this case at oral arguments. Following his passing,
        Justice McBride has replaced him on the panel and has reviewed the briefs and oral argument
        recordings.

                                                     -2-
¶2                                        BACKGROUND
¶3        Plaintiff filed his petition for leave to file a taxpayer suit in the circuit court against
     several state officials who are responsible for disbursing, maintaining, and securing state
     funds: Julie Hamos, Director of the Illinois Department of Health and Family Services;
     Michelle R. B. Saddler, Secretary of the Illinois Department of Human Services; Dan
     Rutherford, Illinois State Treasurer; and Judy Baar Topinka, Illinois State Comptroller.
     Plaintiff challenged the use of state funds under two healthcare benefits programs: the All
     Kids health insurance program, part of the Covering ALL KIDS Health Insurance Act (All
     Kids Act) (215 ILCS 170/1 to 99 (West 2008)), and the Moms & Babies program, authorized
     under sections 1-11 and 12-4.35 of the Illinois Public Aid Code (305 ILCS 5/1-1, 12-4.35
     (West 2008)).
¶4        At this stage, we take all well-pled facts in the taxpayer complaint as true (Daly v. County
     of Madison, 378 Ill. 357, 359 (1941)), though here the relevant facts–describing the operation
     of the programs at issue–are not in dispute. The All Kids and Moms & Babies programs are
     an outgrowth of Illinois’s Medicaid program and the Children’s Health Insurance Program
     (CHIP), which provide medical assistance to low income children and their families. To be
     eligible for Medicaid, recipients generally must earn income of no more than 133% of the
     federal poverty guidelines (see 42 U.S.C. § 1396a(l)(2)(B) (2006)) and must be citizens or
     otherwise fall within several categories of lawful aliens (42 U.S.C. § 1396b(v)(1) (2006); 305
     ILCS 5/1-11 (West 2008)). In 1998, the General Assembly created CHIP, which supplements
     Illinois’s Medicaid program by providing health insurance coverage to children of families
     earning between 133% and 200% of the federal poverty guidelines. See 215 ILCS
     106/20(a)(2) (West 2008). Similar to the Medicaid program, CHIP limits benefits to United
     States citizens and several categories of lawfully resident aliens. 215 ILCS 106/20(a)(3),
     (a)(4) (West 2008).
¶5        The Moms & Babies and All Kids programs are administered through a single
     application by the Illinois Department of Healthcare and Family Services (Department). The
     Moms & Babies program provides benefits for pregnant women and their babies, including
     the mother’s outpatient and inpatient hospital services during pregnancy and for 60 days after
     the baby is born. See http://www.allkids.com/pregnant.html (referenced in plaintiff’s
     proposed complaint). The family income limit for Moms & Babies is 200% of the federal
     poverty guidelines. Id. The recipient mother does not need to be a United States citizen or
     legal alien to receive benefits under the program. Id. The All Kids program offers uninsured
     children subsidized health insurance that covers immunizations, doctor visits, hospital stays,
     and prescription drugs. See 215 ILCS 170/1 (West 2008). The Department is required to
     coordinate the All Kids program with existing health programs (see 215 ILCS 170/15 (West
     2008)), though the All Kids Act extends coverage to children of families earning between
     200% and 300% of the federal poverty guidelines. 215 ILCS 170/20(a) (West 2008). The All
     Kids Act places no limits on the receipt of benefits by unlawful aliens.
¶6        In his proposed complaint, plaintiff alleges, and defendants do not dispute, that pregnant
     women and children without lawful immigration status receive benefits under the Moms &
     Babies and All Kids programs. While plaintiff argued in the circuit court that extending
     medical services to unlawful aliens under the Moms & Babies and All Kids violates 8 U.S.C.

                                               -3-
       § 1621(a), which generally bars unlawful aliens from receiving state or local public benefits,
       the circuit court disagreed. The court denied plaintiff’s petition to file the proposed
       complaint, finding that there was no reasonable ground for the filing of such action because
       the statutes authorizing the Moms & Babies and All Kids programs “affirmatively
       provide[ ]” for the extension of benefits to unlawful aliens, as required by 8 U.S.C.
       § 1621(d). This appeal followed.

¶7                                            ANALYSIS
¶8          On appeal, plaintiff again argues that the Illinois statutes authorizing the All Kids and
       Moms & Babies programs violate 8 U.S.C. § 1621(a)–and do not satisfy the requirements
       of 8 U.S.C. § 1621(d)–because the Illinois statutes do not affirmatively provide that unlawful
       aliens are eligible for state medical benefits. Alternatively, plaintiff contends that the Illinois
       statutes are preempted by federal law. Under section 11-303 of the Code of Civil Procedure,
       a circuit court may deny leave to file the complaint if the court is not “satisfied that there is
       reasonable ground for the filing of such action.” 735 ILCS 5/11-303 (West 2008). Plaintiff
       asserts, and defendants do not contest, that if the All Kids or Moms & Babies programs
       violate federal law (or are preempted by federal law), those programs would constitute a
       misuse of public funds under section 11-303. See Scachitti v. UBS Financial Services, 215
       Ill. 2d 484, 493-94 (2005) (“It has long been the rule in Illinois that citizens and taxpayers
       have a right to enjoin the misuse of public funds ***. The misuse of these funds for illegal
       or unconstitutional purposes is a damage which entitles them to sue.”). The parties also agree
       that in this case compliance with this standard depends on whether the state laws at issue
       comply with the 8 U.S.C. § 1621(d), which in turn depends on our construction of that
       statute’s language. This court reviews questions of statutory construction de novo. Citizens
       Opposing Pollution v. ExxonMobil Coal U.S.A., 2012 IL 111286, ¶ 23. We may affirm the
       circuit court’s judgment on any ground supported by the record. Eychaner v. Gross, 202 Ill.
       2d 228, 262 (2002).

¶9                                       8 U.S.C. § 1621(d)
¶ 10       Section 1621 was enacted as part of the Personal Responsibility and Work Opportunity
       Reconciliation Act of 1996 (PRA). Pub. L. No. 104-193, § 411, 110 Stat. 2105 (1996). “The
       PRA creates a comprehensive statutory scheme for determining aliens’ eligibility for federal,
       state and local benefits and services. It categorizes all aliens as ‘qualified’ or not ‘qualified’
       and then denies public benefits based on that categorization.” League of United Latin
       American Citizens v. Wilson, 997 F. Supp. 1244, 1251-52 (C.D. Cal. 1997). As relevant here,
       the PRA establishes a general prohibition against extending state and local benefits to aliens
       who are not lawfully present in the United States:
               “Notwithstanding any other provision of law and except as provided in subsections
           (b) and (d) of this section, an alien who is not–
                   (1) a qualified alien (as defined in section 1641 of this title),
                   (2) a nonimmigrant under the Immigration and Nationality Act [citation], or


                                                  -4-
                     (3) an alien who is paroled into the United States under 212(d)(5) of such Act
                 [citation] for less than one year,
                 is not eligible for any State or local public benefit (as defined in subsection (c) of this
            section).” 8 U.S.C. § 1621(a) (2006).
       Section 1621(b) recognizes exceptions to this benefits bar for certain categories of state and
       local benefits, including immunizations and emergency labor and delivery. 8 U.S.C.
       § 1621(b). Additionally, section 1621(d) describes the circumstances under which a state
       may extend benefits to unlawful aliens:
                 “A State may provide that an alien who is not lawfully present in the United States
            is eligible for any State or local public benefit for which such alien would otherwise be
            ineligible under subsection (a) of this section only through the enactment of a State law
            after August 22, 1996, which affirmatively provides for such eligibility.” 8 U.S.C.
            § 1621(d).
¶ 11        The central question in this appeal is whether the provisions governing the All Kids and
       Moms & Babies programs “affirmatively provide[ ]” eligibility to undocumented aliens
       under 8 U.S.C. § 1621(d). Before examining the Illinois statutes authorizing those programs,
       we must determine what Congress required of the states in section 1621(d). As in every case
       of statutory construction, we strive to “ascertain and give effect to the legislature’s intent.”
       See, e.g., Citizens Opposing Pollution v. ExxonMobil Coal U.S.A., 2012 IL 111286, ¶ 23
       (citing In re Donald A.G., 221 Ill. 2d 234, 246 (2006)). At the outset, we note our agreement
       with the parties that the statute is not ambiguous and thus the statute’s text, not legislative
       history, must guide our resolution of this case. See, e.g., Krohe v. City of Bloomington, 204
       Ill. 2d 392, 397-98 (2003). Statutory ambiguity is not created simply because the parties
       disagree, and absent ambiguity in the language of the statute, there is no basis to delve into
       the conference reports or statements of legislators to resolve the dispute in this case. Our
       task, then, is to give the statutory text “its plain, ordinary, and popularly understood
       meaning.” Gardner v. Mullins, 234 Ill. 2d 503, 511 (2009).
¶ 12        Where section 1621(d) left the term “affirmatively” undefined, we may consult a
       dictionary to ascertain the plain and ordinary meaning of that term. Gaffney v. Board of
       Trustees of the Orland Fire Protection District, 2012 IL 110012, ¶ 60. Webster’s Third New
       International Dictionary defines the adjective “affirmative” as: “asserting that the fact is so”;
       “declaratory of what exists”; or “assertive, positive.” Webster’s Third New International
       Dictionary 36 (1986). Both parties draw on these definitions and give the statute a similar
       construction. Plaintiff contends that “affirmatively provides” means “positively assert,” while
       defendants argue that “the term ‘affirmatively’ *** ordinarily means a positive statement.”
       With those definitions in hand, the parties disagree, however, on what section 1621(d)
       actually requires. According to plaintiff, the state law must expressly or specifically reference
       “illegal aliens” (or use a similar term, such as “undocumented alien”). Defendants contend
       that section 1621(d) is satisfied by any state law that is an “unambiguous and positive”
       expression of legislative intent to provide coverage for unlawful aliens and opt out of section
       1621(a), even if the statute does not use the term “illegal aliens” or some similar term.
¶ 13        Plaintiff’s argument that the statute requires “specific” or “express” reference to “illegal


                                                   -5-
       aliens” is rooted in what he asserts was Congress’s purpose for section 1621(d): for state
       legislatures to put citizens on notice that public resources are being spent on unlawful aliens.
       We agree that our construction of statutory language is informed by “the objective which the
       statute sought to accomplish and the evil it was desired to remedy.” People v. Moffitt, 138
       Ill. App. 3d 106, 118 (1985) (citing City of Springfield v. Board of Election Commissioners,
       105 Ill. 2d 336, 341 (1985)). But we disagree with plaintiff’s understanding of the objective
       of section 1621(d).
¶ 14        To support his public notice theory, plaintiff relies on the decision of the California Court
       of Appeals, which reasoned that section 1621(d) was meant to “put the public on notice that
       tax dollars are being used to benefit illegal aliens.” Martinez v. Regents of the University of
       California, 83 Cal. Rptr. 3d 518, 544 (Cal. Ct. App. 2008) (noting that the statute was meant
       to ensure “democratic accountability, forcing state legislators to take public responsibility
       for their actions”), rev’d, 241 P.3d 855 (Cal. 2010). Initially, we note that the California
       Supreme Court soundly rejected the court of appeals’ conclusion that the California law ran
       afoul of section 1621(d) because it opted out of section 1621(a) in a “ ‘convoluted manner.’ ”
       See Martinez, 241 P.3d at 867-68. We also see no basis in the statutory text to conclude that
       Congress intended to impose a public notice requirement. In passing the PRA, Congress
       effectively invalidated all existing state laws, regulations, or executive orders that extended
       state or local benefits to unlawful aliens, based on Congress’s asserted interest in
       “remov[ing] the incentive for illegal immigration provided by the availability of public
       benefits.” 8 U.S.C. § 1601(6) (2006). The prohibition of benefits to unlawful aliens was not
       absolute, however. Congress recognized a need to give the states autonomy–or as the title of
       section 1621(d) describes it, “authority”–to provide benefits to aliens not lawfully present
       in the United States. 8 U.S.C. § 1621(d). Where Congress did not require reference to section
       1621(d) or “express” or “specific” reference to “illegal aliens,” the better understanding of
       the requirement that the state law “affirmatively provides” for eligibility of undocumented
       aliens is that Congress wanted to prevent the passive or inadvertent override of section
       1621(a).
¶ 15        Indeed, section 1621(d) could have, but does not, require a “specific” or “express”
       reference to “illegal aliens,” “undocumented aliens,” or any similar term. Affirmative
       language does not equate with specific or express language. See Webster’s Third New
       International Dictionary 803 (1986) (defining “express” as “directly and distinctly stated or
       expressed rather than implied or left to inference”; “not dubious or ambiguous”; “definite,
       clear, explicit, unimstakable”; “exactly represented”); id. at 2187 (defining “specific” as
       “constituting or falling into the category specified”; “characterized by precise formulation
       or accurate restriction (as in stating, describing, defining, reserving)”; or “free from such
       ambiguity as results from careless lack of precision or from omission of pertinent matter”).
       As defendants explain, Congress has shown its understanding of the distinction between
       affirmative and specific language. See, e.g., 12 U.S.C. § 36(c) (2006) (allowing national
       banks to establish banking branches “if such establishment and operation are at the time
       authorized to State banks by the statute law of the State in question by language specifically
       granting such authority affirmatively and not merely by implication or recognition”
       (emphases added)); 18 U.S.C. § 3553(b)(2)(A)(ii)(I) (2006) (permitting federal courts to

                                                  -6-
       depart from sentencing guidelines where mitigating circumstances have “been affirmatively
       and specifically identified”).
¶ 16       Section 1621(d) also does not require that the state statute expressly reference the federal
       provision–the best way to put Congress on notice of the extension of benefits to unlawful
       aliens. Again, Congress has shown that it knows how to require reference to a specific
       provision, as Congress has often imposed requirements on states seeking to legislate in a
       certain area. See, e.g., 15 U.S.C. § 80a-3a(c) (2006) (“Notwithstanding subsections (a) and
       (b) of this section *** a State may enact a statute that specifically refers to this section and
       provides prospectively that this section shall not preempt the laws of that State referred to
       in this section.” (Emphasis added.)); see also Martinez, 241 P.3d at 867 (“Congress has
       shown it knows how to require a state specifically to reference a federal law when it wishes
       to do so, because it has done just that numerous times.”).
¶ 17       Congress could have easily imposed these conditions–requiring the state legislature to
       specifically refer to “illegal aliens” or some similar term or requiring reference to subsection
       (d)–in order to put the public on notice of the extension of benefits to unlawful aliens.
       Instead, Congress provided states the authority to opt out of section 1621(a) without
       imposing those requirements, and this court is not free to read into statutes limitations or
       conditions not expressed by the legislature. See Solich v. George & Anna Portes Cancer
       Prevention Center of Chicago, Inc., 158 Ill. 2d 76, 83 (1994) (“Where an enactment is clear
       and unambiguous, as this one is, a court is not at liberty to depart from the plain language and
       meaning of the statute by reading into it exceptions, limitations or conditions that the
       legislature did not express.”). We therefore agree with defendants that section 1621(d) is
       satisfied by any state law that conveys a positive expression of legislative intent to opt out
       of section 1621(a) by extending state or local benefits to unlawful aliens. Where Congress
       has shown that it knows how to require states to expressly reference a federal statute, and it
       could have easily proscribed the exact wording of the state law, we conclude that Congress
       did not intend to impose those conditions by using the less restrictive language of section
       1621(d).
¶ 18       Plaintiff nevertheless claims that two cases in the state appellate courts have endorsed
       his construction of the statute and should serve as persuasive authority for this court. First,
       plaintiff relies on the decision of the Florida appellate court in Department of Health v.
       Rodriguez, 5 So. 3d 22 (Fla. Dist. Ct. App. 2009). While the Florida court determined that
       the statutes governing Florida’s brain and spinal cord injury (BSCI) program did not meet
       the requirements of section 1621(d), we find that decision inapposite. The only questions
       discussed on appeal in Rodriguez were whether BSCI benefits were “State or local public
       benefits” under the PRA and whether the BSCI program was exempt under other sections
       of the PRA. See id. at 25-26. Once the court concluded that the PRA applied to the BSCI
       program, the “affirmatively provides” language of section 1621(d) was never at issue because
       the Florida legislature simply had not enacted any law after August 22, 1996 in response to
       the PRA. The governing provisions of the BSCI program were enacted in 1994, renumbered
       in 1999, and certain sections were amended in 2000, but the appellant could point to no law
       enacted after August 22, 1996 that touched on the citizenship requirements to satisfy section
       1621(d). Id. Plaintiff relies on the Rodriguez court’s statement that “[a]t no time since

                                                 -7-
       August 22, 1996, the date provided for in section 1621(d), has the Legislature enacted a law
       specifying that illegal aliens are eligible for the BSCI Program.” (Emphasis added.) Id. at
       26. Focusing on the italicized language, plaintiff argues that the Florida court decided that
       the state law must specifically reference “illegal aliens” or some other term to comply with
       section 1621(d). We do not take this single sentence in the opinion as a definitive
       construction of the “affirmatively provides” language in section 1621(d). The court was
       never asked to construe that language, did not discuss the meaning of “affirmatively
       provides,” and never examined the statutory language of any Florida statute to determine
       compliance with section 1621(d). Rodriguez provides no answers to the question presented
       in this case.
¶ 19        Plaintiff next relies on the California Supreme Court’s decision in Martinez v. Regents
       of the University of California, 241 P.3d 855 (Cal. 2010). In that case, the court considered
       a California education statute, section 68130.5, which provided that “ ‘a person without
       lawful immigration status’ ” could be exempt from paying nonresident tuition at California
       state colleges and universities under certain circumstances. 241 P.3d at 866 (quoting Cal.
       Educ. Code § 68130.5). Among other challenges to the law, the plaintiffs argued that section
       68130.5 violated 8 U.S.C. § 1621(a) and did not meet the requirements of section 1621(d).
       The court first rejected the contention that the state law at issue must specifically reference
       “title 8 U.S.C. section 1621” based on statements in the legislative history; the court refused
       to “read[ ] into a statute language it does not contain or elements that do not appear on its
       face.” Martinez, 241 P.3d at 867. The court further stated:
            “Section 1621 requires no specific words, and certainly not the specific words ‘illegal
            alien,’ which not even section 1621 uses. We agree with the Regents’ argument that ‘in
            order to comply, the state statute must expressly state that it applies to undocumented
            aliens, rather than conferring a benefit generally without specifying that its beneficiaries
            may include undocumented aliens.’ ” Id. at 868.
       The court thus concluded that the California statute under consideration, referencing persons
       “without lawful immigration status,” clearly complied with section 1621(d). Id.
¶ 20        Relying on Martinez, plaintiff contends that section 1621(d) requires express reference
       to “illegal aliens” or a similar term. We disagree. Initially, we note our agreement with this
       decision in Martinez insofar as it holds that conferring a benefit generally, without any
       indication that the legislature intends to opt out of section 1621(d) and extend coverage to
       unlawful aliens, would not satisfy that statute. Id. We also agree with the court’s conclusion
       that “[s]ection 1621 requires no specific words.” Id. To the extent that the California
       Supreme Court’s holding requires an express reference to “illegal aliens” or “undocumented
       alien,” “aliens without lawful immigration status,” “aliens not lawfully present,” or some
       similar term, however, we depart from the court’s decision. There is no requirement in the
       statute for an express or specific reference to undocumented aliens, even if the statute before
       the court in Martinez provided such a reference. As discussed above, section 1621 establishes
       that states have the authority to provide benefits, so long as there is a positive expression of
       intent to opt out of section 1621(a) and provide benefits to unlawful aliens. This ensures that
       the state legislature does not inadvertently override the bar established in section 1621(a).
       Accordingly, to comply with section 1621(d), the statutes underlying the All Kids and Moms

                                                 -8-
       & Babies programs must positively and unambiguously evidence the legislative intent to opt
       out of section 1621(a) and provide coverage for unlawful aliens. We now consider whether
       the Illinois statutes meet that test.

¶ 21                                  The Moms & Babies Program
¶ 22        There is no dispute that the state laws authorizing the Moms & Babies program, sections
       1-11 and 12-4.35 of the Illinois Public Aid Code (305 ILCS 5/1-11, 12-4.35 (West 2008)),
       were enacted after August 22, 1996. Section 1-11 of the Public Aid Code, which became
       effective July 1, 1997, provides:
            “To the extent not otherwise provided in this Code or federal law, all clients who receive
            cash or medical assistance under Article III, IV, V, or VI of this Code must meet the
            citizenship requirements as established in this Section. To be eligible for assistance an
            individual, who is otherwise eligible, must be either a United States citizen or included
            in one of the following categories of non-citizens:
                     [listing several categories of legal noncitizens]
                The Illinois Department may, by rule, cover prenatal care or emergency medical care
            for non-citizens who are not otherwise eligible under this Section. Local governmental
            units which do not receive State funds may impose their own citizenship requirements
            and are authorized to provide any benefits and impose any citizenship requirements as
            are allowed under the Personal Responsibility and Work Opportunity Reconciliation Act
            of 1996 (P.L. 104-193).” 305 ILCS 5/1-11 (West 2008).
       Similarly, section 12-4.35 of the Illinois Public Aid Code, which became effective July 1,
       1998, provides:
            “Notwithstanding Section 1-11 of this Code or Section 20(a) of the Children’s Health
            Insurance Program Act, the Department of Healthcare and Family Services may provide
            medical services to noncitizens who have not yet attained 19 years of age and who are
            not eligible for medical assistance under Article V of this Code or under the Children’s
            Health Insurance Program created by the Children’s Health Insurance Program Act due
            to their not meeting the otherwise applicable provisions of Section 1-11 of this Code or
            Section 20(a) of the Children’s Health Insurance Program Act. The medical services
            available, standards for eligibility, and other conditions of participation under this
            Section shall be established by rule by the Department ***.” 305 ILCS 5/12-4.35 (West
            2008) (referencing Medicaid immigration standards (305 ILCS 5/1-11 (West 2008)) and
            CHIP immigration standards (215 ILCS 106/20(a) (West 2008))).
¶ 23        Initially, we note that section 1-11 (which is also referenced in section 12-4.35), became
       effective just one year after PRA and explicitly references “the Personal Responsibility and
       Work Opportunity Reconciliation Act of 1996.” The General Assembly was therefore clearly
       cognizant that the PRA imposed requirements on the distribution of public benefits in
       Illinois. In fact, the legislature directed local government units to “impose their own citizen
       requirements” as to the distribution of purely local benefits only if they were “allowed” under
       the PRA. 305 ILCS 5/1-1 (West 2008). As to state public benefits, the General Assembly
       established a list of legal noncitizens who could receive a wide array of benefits and services.

                                                 -9-
       For the much smaller subset of benefits at issue in this case–“prenatal care” in section 1-11
       and “medical services” for those under 19 in section 12-4.35–the General Assembly extended
       coverage to “noncitizens” who were not otherwise eligible (i.e., any noncitizens who did not
       fall into the categories listed in the statute who were eligible for the wider range of benefits).
       The term “noncitizen” used in section 1-11 and section 12-4.35, left unmodified by the
       statute, is certainly broad enough to extend to unlawful aliens. See Economy Packing Co. v.
       Illinois Workers’ Compensation Comm’n, 387 Ill. App. 3d 283, 288-89 (2008) (“When
       unmodified, the term ‘alien’ is broad enough in scope to encompass any ‘person who resides
       within the borders of a country but is not a citizen or subject of that country.’ [Citation.]”).
       Where the General Assembly, clearly aware of the PRA, enacted legislation that extended
       a small class of benefits to all noncitizens, without limitation, who were not otherwise
       eligible, we conclude that sections 1-11 and 12-4.35 evidence the positive legislative intent
       required by section 1621(d) to opt out of section 1621(a) and provide coverage for unlawful
       aliens.
¶ 24        Plaintiff argues that these statutes do not comply with section 1621(d) because the State
       has delegated the implementation of the opt-out to the Department of Healthcare and Family
       Services (Department), an administrative agency.2 We disagree. Sections 1-11 and 12-4.35
       are the “state laws enacted after August 22, 1996” that express the legislature’s intent to opt
       out of section 1621(a). Through those statutes, the legislature has clearly expressed its intent
       to opt out of the benefits bar in section 1621(a), and nothing in section 1621(d) prevents state
       legislatures from delegating the implementation of the opt-out to administrative agencies
       once it affirmatively provides for it in the state statute. Plaintiff’s argument again depends
       on his theory that compliance with section 1621(d) is determined by whether the public has
       adequately been put on notice: he contends that “trying to follow/understand these obscure
       rules/regulations, which reference numerous other statutes is extraordinarily difficult and
       confusing for the general public.” This is not the test for compliance with section 1621(d).
       Here, by passing a statute that positively conveys the intent to opt out of section 1621(a), the
       General Assembly has fully complied with section 1621(d) with respect to the benefits
       offered under the Moms & Babies program.

¶ 25                                  The All Kids Program
¶ 26       Plaintiff additionally challenges the benefits extended to children under the All Kids
       program. The foregoing discussion regarding the Moms & Babies program largely forecloses
       plaintiff’s argument. Section 12-4.35 of the Public Aid Code vests the Department with the

               2
                The operative administrative rule is title 89, section 118.500, of the Illinois Administrative
       Code (89 Ill. Adm. Code 118.500 (2012)), which provides that noncitizen children under 19 years
       of age may be eligible for benefits under Medicaid and CHIP, even if they do not fall into the into
       the categories of legal resident aliens allowed for those programs. We agree with defendants that it
       is consistent with the legislative intent expressed in sections 1-11 and 12-4.35 to construe section
       118.500 as authorizing prenatal care for pregnant women. These statutes establish the legislative
       directive to the Department of Healthcare and Family Services to opt out of section 1621(a) and
       cover prenatal care for expectant mothers, regardless of immigration status.

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       authority, by rule, to “provide medical services to noncitizens who have not yet attained 19
       years of age and who are not eligible for medical assistance” because of Medicaid and CHIP
       immigration requirements (see 305 ILCS 5/12-4.35 (West 2008)), and the Department has
       carried out that directive in section 118.500 of title 89 of the Administrative Code (89 Ill.
       Adm. Code 118.500 (2012)). As explained above, section 12-4.35 evidences the legislative
       intent to opt out of section 1621(a) and provide coverage for children who meet the income
       requirements of the Medicaid and CHIP programs, regardless of their immigration status.
¶ 27       Plaintiff nevertheless argues that because section 12-4.35 only applies to benefits to
       children who meet the income requirements of the Illinois Public Aid Code or CHIP, it does
       not extend to benefit levels under the All Kids Act. Defendants acknowledge that the All
       Kids Act provides health insurance coverage to Illinois children living in households with
       incomes 200% to 300% above federal poverty guidelines (i.e., beyond the income
       requirements of Medicaid or CHIP). See 215 ILCS 170/20(a) (West 2008). In the All Kids
       Act, however, the General Assembly established that “[i]t is *** the intent of this legislation
       to provide access to affordable health insurance to all uninsured children in Illinois.” 215
       ILCS 170/5 (West 2008); see also id. (“The General Assembly finds that, for the economic
       and social benefit of all residents of the State, it is important to enable all children of this
       State to access affordable health insurance that offers comprehensive coverage and
       emphasizes preventive healthcare.” (Emphasis added.)).
¶ 28       Thus, after the General Assembly expressed its intent to opt out of section 1621(a) by
       providing benefits to unlawful alien children at the income levels of the Medicaid and CHIP
       programs, the General Assembly positively established its intent to allow “all children of this
       State to access affordable health insurance.” (Emphasis added.) 215 ILCS 170/5 (West
       2008). While the All Kids Act raised the income threshold for eligibility beyond the limits
       of Medicaid and CHIP, it also imposed no immigration or citizen requirements for the All
       Kids program. Instead, the All Kids Act used unlimited and broad language, referencing “all
       kids.” When the General Assembly used such broad and unmodified language, especially
       after extending Medicaid and CHIP benefits to noncitizen children under section 12-4.35,
       we conclude that the All Kids Act conveys the legislature’s unambiguous and positive
       expression of intent to cover children who otherwise meet the income requirements of that
       act, regardless of immigration status. See, e.g., Ali v. Federal Bureau of Prisons, 552 U.S.
       215, 221 (2008) (“Congress could not have chosen a more all-encompassing phrase than ‘any
       other law enforcement officer’ to express [its] intent.”); Potts v. Department of Registration
       & Education, 145 Ill. App. 3d 960, 965 (1986) (finding the term “any” in a statute should be
       read without limitation to void imposing restrictions into the statute). As with section 12-
       4.35, the All Kids Act positively establishes the legislature’s intent to opt out of section
       1621(a) by extending benefits to children without lawful immigration status.

¶ 29                               Implied Conflict Preemption
¶ 30       Finally, plaintiff argues that even if the Illinois statutes discussed above comply with
       section 1621(d), they nonetheless constitute a misuse of public funds because they are
       preempted by federal law. Under the supremacy clause of the United States Constitution,


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       federal law preempts state law in any one of the following three circumstances: “(1) express
       preemption–where Congress has expressly preempted state action; (2) implied field
       preemption–where Congress has implemented a comprehensive regulatory scheme in an area,
       thus removing the entire field from the state realm; or (3) implied conflict preemption–where
       state action actually conflicts with federal law.” Carter v. SSC Odin Operating Co., 237 Ill.
       2d 30, 39-40 (2010). Here, plaintiff argues that the state statutes are “conflict preempted”
       because they present an “unacceptable obstacle to the accomplishment and execution of the
       full purposes and objectives of Congress.” (Internal quotation marks omitted.) Wyeth v.
       Levine, 555 U.S. 555, 563-64 (2009); Carter, 237 Ill. 2d at 40. Plaintiff contends that the
       state laws discussed above directly conflict with 8 U.S.C. § 1324(a)(1)(A)(iv) and 8 U.S.C.
       § 1601(6). Under section 1324(a)(1)(A)(iv), it is a crime for any person who “encourages or
       induces an alien to come to, enter, or reside in the United States, knowing or in reckless
       disregard of the fact that such coming to, entry, or residence is or will be in violation of law.”
       8 U.S.C. § 1324(a)(1)(A)(iv) (2006). 8 U.S.C. § 1601(6) provides that “[i]t is a compelling
       government interest to remove the incentive for illegal immigration provided by the
       availability of public benefits.” 8 U.S.C. § 1601(6) (2006).
¶ 31        Plaintiff’s preemption claim runs into a significant hurdle: the plain language of section
       1621. While section 1621(a) establishes a general bar against state and local benefits to
       unlawful aliens, section 1621(d) expressly states that a state “may” provide public benefits
       if the state complies with the statutory requirements. Plaintiff responds that section 1621(d)
       does not end the preemption inquiry because the United States Supreme Court has held that
       a saving clause “does not bar the ordinary working of conflict pre-emption principles.”
       (Emphasis in original.) Geier v. Honda American Motor Co., 529 U.S. 861, 869 (2000). In
       Geier, the Supreme Court held that a federal safety standard, which gave car manufacturers
       a “range of choices” in installing passive restraint systems, impliedly preempted a tort suit
       that created a duty for defendant-manufacturers to install air bags. 529 U.S. at 874-75. The
       federal law at issue in Geier contained a clause expressly preempting state regulations, along
       with a saving clause, which provided that “ ‘[c]ompliance with’ a federal safety standard
       ‘does not exempt any person from any liability under common law.’ ” Id. at 868 (citing 15
       U.S.C. § 1397(k)). The Court determined that the saving clause was not broad enough to save
       every state tort action, for “[n]othing in the language of the saving clause suggests an intent
       to save state-law tort actions that conflict with federal regulations.” Id. at 869. The Court
       concluded that the duty recognized by the state court “presented an obstacle to the variety
       and mix of devices that the federal regulation sought” and was therefore preempted by the
       federal safety standard. Id. at 881.
¶ 32        It is true that section 1621(d) is a sort of “saving clause,” in that it is an “exception of a
       special thing out of the general things mentioned in the statute.” Black’s Law Dictionary
       1343 (6th ed. 1990). But the saving clause at issue in Geier was limited, establishing “room
       for state tort law to operate” and foreseeing “the possibility that a federal safety standard will
       pre-empt a state common-law tort action with which it conflicts.” Geier, 529 U.S. at 868,
       870. In contrast, while Congress has expressed a “compelling government interest to remove
       the incentive for illegal immigration provided by the availability of public benefits” (8 U.S.C.
       § 1601(6) (2006)), it has also recognized exceptions to this general prohibition, despite the

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       possible incentive that these exceptions might create. Under 8 U.S.C. § 1621(b), for example,
       unlawful aliens may receive certain state and local benefits, including immunizations and
       emergency labor and delivery. Under section 1621(d), a state “may” provide public benefits
       for unlawful aliens if it meets the requirements of that section. Section 1621 thus strikes a
       balance between federal interests and state interests by giving the states authority to act
       despite the federal interest in discouraging illegal immigration expressed in section
       1324(a)(1)(A)(iv) and section 1601(6).
¶ 33       Plaintiff takes the argument further, claiming that the programs here conflict with federal
       law because they allow unlawful aliens “medical benefits on a long-term basis, and with no
       limits on the amount of benefits received.” But section 1621(d) recognizes no such limits on
       the duration, extent, or quantity of state or local benefits that states may provide. As we have
       explained above, the Illinois statutes comply with the minimal conditions set out in section
       1621(d). Where Congress provided the states with broad authority to extend state and local
       benefits to those not lawfully present in the United States, we conclude that “Congress did
       not impliedly prohibit what it expressly permitted.” Martinez, 241 P.3d at 869 (finding no
       implied conflict preemption or field preemption for California benefits law in light of
       Congress’s express permission for states to extend benefits in section 1621(d)). The Illinois
       statutes are not impliedly conflict preempted.

¶ 34                                   CONCLUSION
¶ 35      For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 36      Affirmed.




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