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05/11/88 Laurence N. Smith, v. Department of Registration

May 11, 1988

LAURENCE N. SMITH, PLAINTIFF-APPELLANT

v.

DEPARTMENT OF REGISTRATION AND EDUCATION OF THE STATE OF ILLINOIS, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

523 N.E.2d 1271, 170 Ill. App. 3d 40, 120 Ill. Dec. 360 1988.IL.729

Appeal from the Circuit Court of Cook County; the Hon. Anthony J. Scotillo, Judge, presiding.

APPELLATE Judges:

JUSTICE McNAMARA delivered the opinion of the court. WHITE, P.J., and RIZZI, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Plaintiff Laurence Smith appeals from the dismissal of his complaint which sought to enjoin administrative proceedings brought by defendant, the Illinois Department of Registration and Education (Department), against plaintiff. On appeal, plaintiff maintains that the Department's refusal to grant a subpoena for a discovery deposition at the administrative stage of this case violated his right to due process and therefore the trial court erred in not enjoining the administrative proceedings.

The Department filed an administrative complaint against plaintiff seeking the revocation, suspension or other discipline of his medical license in connection with his practice as a chiropractor. Plaintiff is the alleged owner and operator of Alpha-Care, a medical and chiropractic clinic. The administrative complaint alleged that plaintiff forged the name of Dr. Peter Chou on numerous claim statements submitted to various insurance companies seeking payment for services or treatments rendered to patients of Alpha-Care. Dr. Chou was employed by Alpha-Care. The complaint further alleged that the forged claim statements were false and fraudulent in that plaintiff knew they listed Dr. Chou to be the provider of the services when Dr. Chou never performed the services or treatments claimed therein.

At the first administrative hearing, the hearing officer denied plaintiff's request that a subpoena be issued for the discovery deposition of Dr. Chou. Plaintiff then filed the present complaint in the trial court to enjoin the administrative proceedings naming the Department as defendant. Specifically, the complaint sought a temporary restraining order and a permanent and temporary injunction enjoining the Department from prosecuting the administrative complaint unless and until a subpoena was issued to Dr. Chou for his deposition and his deposition was taken. The complaint also alleged that the hearing officer possessed the discretion to issue a subpoena for a discovery deposition, that Dr. Chou was apparently the sole witness against plaintiff, and that failure to issue the subpoena was a violation of the plaintiff's right to due process. The trial court granted the Department's motion to dismiss plaintiff's complaint. The trial court found that plaintiff had not established a protectable right to prehearing discovery or an inadequate remedy at law.

In Illinois, a court will issue an injunction if the plaintiff has established the existence of a lawful right, that he will suffer irreparable harm without the injunction and that he has an inadequate remedy at law. (Distaola v. Department of Registration & Education (1979), 72 Ill. App. 3d 977, 391 N.E.2d 489.) Before an injunction may issue, it must be shown that plaintiff seeks to protect a right that is certain and clearly ascertainable. Distaola v. Department of Registration & Education (1979), 72 Ill. App. 3d 977, 391 N.E.2d 489.

In the present case, plaintiff attempts to equate a lawful right with a protectable property interest. We agree that plaintiff has a protectable property interest. A medical license is a property interest which deserves due process protection in an administrative proceeding. (McCabe v. Department of Registration and Education (1980), 90 Ill. App. 3d 1123, 413 N.E.2d 1353, cert. denied (1981), 454 U.S. 838, 70 L. Ed. 2d 119, 102 S. Ct. 143.) However, plaintiff has no constitutional right to a prehearing discovery deposition. (Scott v. Department of Commerce & Community Affairs (1981), 84 Ill. 2d 42, 416 N.E.2d 1082.) The rules of practice in administrative hearings dictate discovery in administrative hearings. (68 Ill. Adm. Code 110.5, 110.130 (1985).) The only depositions authorized by these rules are evidence depositions, which are permitted only upon agreement of the parties. 68 Ill. Adm. Code 110.130(h)(1985).

Additional statutory powers conferred upon the Department in the administration of laws regulating professions, trades and occupations give the Department the power to subpoena and bring before it any person in the State and to take testimony "either orally or by deposition, or both." (Ill. Rev. Stat. 1985, ch. 127, par. 60d.) We do not believe, however, that this statute authorizes a subpoena for a discovery deposition. The reference to deposition testimony relates to an evidence deposition to be used in the place of oral testimony and corresponds with the administrative rules giving the Department the subpoena power for the attendance of witnesses and the use of evidence depositions by agreement of the parties. Clearly, neither the rules of practice in administrative hearings nor the additional statutory authority of the Department provide plaintiff with a right to a prehearing discovery deposition. Nor do the rules allow the hearing officer in the present case the discretion to issue a subpoena for such a deposition. Accordingly, we find that plaintiff has not established a right to a discovery deposition and therefore has not shown the existence of an ascertainable right entitled to protection.

Furthermore, plaintiff has not shown an inadequate remedy at law. In this regard, plaintiff first contends that the particular administrative process is inadequate to protect his due process rights and thus is constitutionally flawed. We acknowledge that due process safeguards and protections apply to medical license revocation proceedings. (McCabe v. Department of Registration & Education (1980), 90 Ill. App. 3d 1123, 413 N.E.2d 1353.) Plaintiff maintains, however, that due process requires that the Department issue a subpoena for the discovery deposition of Dr. Chou. Plaintiff argues that because Dr. Chou is the sole material witness against plaintiff, refusal to allow this deposition would irrevocably prejudice him because of the inability of his counsel to rebut or impeach Dr. Chou's testimony and thus impair his ability to adequately defend the case.

The purpose of pretrial discovery is to aid the party in preparation and presentation of his case or defense, assuring the truth and to eliminate as far as possible surprise, so that judgments will rest upon the merits and not upon the skillful maneuvering of counsel. (Wegmann v. Department of Registration & Education (1978), 61 Ill. App. 3d 352, 377 N.E.2d 1297.) The need for discovery at the administrative level is the same. (Wegmann v. Department of Registration & Education (1978), 61 Ill. App. 3d 352, 377 N.E.2d 1297.) Here, plaintiff had available to him a list of all witnesses the Department intended to call, copies of all documents to be offered into evidence, and any investigative reports of the registrant used by the Department in the preparation of its case. (68 Ill. Adm. Code 110.130(b) (1985).) Generally, in all cases involving professional licenses, this court has held that an agency is required to disclose evidence in its possession which might be helpful to an accused. (McCabe, 90 Ill. App. 3d 1123, 413 N.E.2d 1353; Wegmann, 61 Ill. App. 3d 352, 377 N.E.2d 1297.) The rules of practice in administrative hearings were amended to include the requirement that the Department disclose any exculpatory information in the Department's possession. Exculpatory evidence is defined as any evidence which tends to support the registrant's position or to call into question the credibility of a Department witness. 68 Ill. Adm. Code 110.130(d)(1) (1985).

Plaintiff argues that the Department failed to consider whether Dr. Chou's deposition would be helpful to the preparation and presentation of plaintiff's defense. We find, however, that there is no indication in the record that the denial of plaintiff's request will hinder the preparation of his defense. Nor does it appear that the purpose of prehearing ...


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