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Chastek v. Anderson

OPINION FILED JANUARY 20, 1981.

DALE CHASTEK, APPELLEE,

v.

JOAN ANDERSON ET AL., APPELLANTS.



Appeal from the Circuit Court of Cook County, the Hon. Reginald J. Holzer, Judge, presiding.

MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:

In the circuit court of Cook County, plaintiff, Dale Chastek, sought a permanent injunction restraining the Department of Registration and Education (Department) from conducting a hearing against him on a pending complaint. Plaintiff and the Department each filed a motion for summary judgment. The trial court granted plaintiff's motion, finding the statute under which he was charged by the Department invalid, and issued a permanent injunction restraining the Department from conducting a hearing based upon its complaint.

The issues are (1) whether section 7(11) of "An Act to regulate the practice of dental surgery and dentistry * * *" (Ill. Rev. Stat. 1977, ch. 111, par. 2222(11)) is vague, thereby depriving plaintiff of his constitutional right to due process, and (2) whether "unprofessional conduct" under the statute includes conduct of the type alleged against plaintiff.

The facts are not in dispute. On August 31, 1979, the Department filed what we will refer to as a three-count complaint against plaintiff, a registered dentist and orthodonist, charging him with unprofessional conduct in the treatment of three patients. The first count alleged that plaintiff rendered improper treatment to one patient for nine years which resulted in a condition known as "cross bite." The improper treatment asserted included failure to take cephalometric head plates and failure to advise necessary extraction of certain teeth prior to the placing of braces. The second count alleged that plaintiff rendered improper treatment to another patient for eight years, including failure to take cephalometric head plates, improper placement of a retainer which interfered with the consumption of food, and failure to provide dental records to the dentists who assumed subsequent treatment of the patient. The third count alleged improper treatment of another patient for eight years which resulted in a malocclusion. The improper treatment asserted in connection with this patient included failure to take cephalometric head plates and failure to order oral surgery when necessary. The Department sought to suspend or revoke plaintiff's dentist and orthodonist licenses on the ground that the above acts and omissions constituted "unprofessional conduct" under section 7(11) of the statute.

Prior to a hearing on the Department's complaint, plaintiff sought and was issued a temporary restraining order against defendant in the trial court on November 7, 1979. On December 21, the trial court found the statute void and entered a permanent injunction preventing the Department from conducting a hearing to suspend or revoke plaintiff's licenses.

The statute in question provides:

"The Department of Registration and Education may refuse to issue, may suspend or may revoke a license for any one or any combination of the following causes:

11. Improper, unprofessional or dishonorable conduct." (Ill. Rev. Stat. 1977, ch. 111, par. 2222.)

Plaintiff contends that the statutory phrase allowing license revocation for improper, unprofessional or dishonorable conduct is vague, thereby depriving him of his constitutional right to due process. He argues that section 7(11) of the statute affords him no advance notice of the type of acts that constitute "unprofessional conduct."

Plaintiff cites several cases in which the courts> have not allowed license revocations. (Megdal v. Oregon State Board of Dental Examiners (1980), 288 Or. 293, 605 P.2d 273; Tuma v. Board of Nursing (1979), 100 Idaho 74, 593 P.2d 711; State Board of Dentistry v. Blumer (1977), 78 Mich. App. 679, 261 N.W.2d 186; Lester v. Department of Professional & Occupational Regulations (Fla. App. 1977), 348 So.2d 923.) None of these cases, however, found a statute allowing license revocation for unprofessional conduct to be unconstitutional. Blumer disallowed license revocation because the board involved did not further define unprofessional conduct. The other cases disallowed license revocation because the statute in question did not afford notice that the conduct with which the doctors were charged fell within the purview of the statute. In none of these cases, however, did the acts alleged reflect on the person's fitness to practice his profession. In fact, several of these cases imply that the statutes in question did place the person on notice that conduct relating to his fitness to practice would fall under the statute. For example, in Megdal, in which a dentist was charged with making intentional misrepresentations to his malpractice insurer, the court stated:

"It might be agreed that the term [unprofessional conduct] covers conduct in the course of rendering the professional service on the one hand, and on the other that it excludes the licensee's purely private affairs unrelated to any relevant professional qualification or performance. But between these two poles, there may be questions how far `unprofessional conduct' extends to financial arrangements or to mixing professional with other relationships." 288 Or. 293, 315, 605 P.2d 273, 284.

Similarly, in Tuma, where a nurse was charged with discussing alternative treatments with a patient, the court stated, "With respect to [the nurse], however, there appears to be no contention whatever that she is unfit to nurse * * *." (100 Idaho 74, 80, 593 P.2d 711, 717.) In contrast, the alleged conduct in the instant case specifically reflects on the plaintiff's fitness to practice his profession.

This court has held that a statute does not violate the due process clauses of the United States or Illinois constitutions, on grounds of vagueness, if the duty imposed by the statute is prescribed in terms definite enough to serve as a guide to those who must comply with it. (E.g., Stein v. Howlett (1972), 52 Ill.2d 570, 579-80; Jaffe v. Cruttenden (1952), 412 Ill. 606, 609.) Many courts> have upheld the validity of similar statutes providing for license revocation against constitutional challenges based on vagueness. Shea v. Board of Medical Examiners (1978), 81 Cal.App.3d 564, 574, 146 Cal.Rptr. 653, 659-60 (unprofessional conduct); Buhr v. Arkansas State Board of Chiropractic Examiners (1977), 261 Ark. 319, 322, 547 S.W.2d 762, 764, en banc (gross immorality and unprofessional conduct); Richardson v. Florida State Board of Dentistry (Fla. App. 1976), 326 So.2d 231, 233 (misconduct which would bring discredit upon the dental profession); Hoke v. Board of Medical Examiners (W.D.N.C. 1975), 395 F. Supp. 357, 358 (grossly immoral conduct); Martinez v. Texas State Board of Medical Examiners (1972), 476 S.W.2d 400, 404 (grossly unprofessional or dishonorable conduct); Board of Medical Examiners v. Mintz (1963), 233 Or. 441, 446-49, 378 P.2d 945, 947-49 (unprofessional or dishonorable conduct); Reyburn v. Minnesota State Board of Optometry (1956), 247 Minn. 520, 523-24, 78 N.W.2d 351, 355 (unprofessional conduct); Bell v. Board of Regents (1946), 295 N.Y. 101, 108-111, 65 N.E.2d 184, 187-89 (unprofessional conduct); In re Cherry (1942), 289 N.Y. 148, 158, 44 N.E.2d 405, 411 (unprofessional conduct); Walker v. Corwin (1941), 210 Minn. 337, 340, 300 N.W. 800, 801 (gross moral or professional misconduct); Warnshuis v. State Board of Registration in Medicine (1938), 285 Mich. 699, 703-04, 281 N.W. 410, 411 (grossly unprofessional and dishonest conduct); Sapero v. State Board of Medical Examiners (1932), 90 Colo. 568, 574-75, 11 P.2d 555, 557-58 (immoral, unprofessional or dishonorable conduct); Ramsay v. Shelton (1928), 329 Ill. 432, 444 (unprofessional or dishonorable conduct).

Plaintiff argues that Shea, Martinez, Richardson, Reyburn, Cherry and Warnshuis are distinguishable in that the statutes involved have language defining unprofessional conduct. Although these cases involve statutes with some definitional verbiage, the additional language was not utilized by the courts> in arriving at the conclusion that the doctors' actions constituted unprofessional conduct. Consequently, the notice to persons involved that their actions fell under the ambit of the statute was no greater than if the additional language were absent. For example, in Shea v. Board of Medical Examiners (1978), 81 Cal.App.3d 564, 146 Cal.Rptr. 653, the court upheld the revocation of a physician's certificate by the State Board of Medical Examiners for unprofessional conduct. The statute defined unprofessional conduct as gross immorality, and the commission of any act involving moral turpitude, dishonesty or corruption. The court found that Dr. Shea's conduct did not fall within any act specified by the statute. The court held, however, that it is unnecessary for a statute to enumerate specific acts which constitute unprofessional conduct. It analyzed the statute in terms of its ...


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