¶1specially concurring:
¶2I write this special concurrence not to disagree with my colleague Justice Cunningham’s interpretation of Gibellina v. Handley (1989), 127 Ill. 2d 122, which I authored, but to again express my strong belief that section 2 — 622 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 622) is unconstitutional.
¶3As the majority opinion aptly notes, “the crux of this appeal” is the interpretation of Gibellina. (See 147 Ill. 2d at 424.) The majority opinion correctly holds that in Gibellina, this court intended to give the trial court the discretion to hear and decide a motion which has been filed prior to a section 2 — 1009 motion for voluntary dismissal when that motion, if favorably ruled on by the court, could result in a final disposition of the case. See Gibellina, 127 Ill. 2d at 138.
¶4Nonetheless, section 2 — 622 is also involved in this appeal, for it is plaintiff’s failure to comply with that code section which ultimately provoked the Gibellina issue. Consequently, I feel I must reiterate my conviction that section 2 — 622 is unconstitutional in that it violates the separation of powers clause of the Illinois Constitution (Ill. Const. 1970, art. II, §1). See DeLuna v. St. Elizabeth’s Hospital (1992), 147 Ill. 2d 57 (Clark, J., dissenting); McAlister v. Schick (1992), 147 Ill. 2d 84 (Clark, J.,. joined by Bilandic and Freeman, JJ., dissenting).
¶5JUSTICES BILANDIC and FREEMAN join in this special concurrence.