APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JOHN HOURIHANE, Judge Presiding.
Released for Publication September 13, 1994.
The opinion of the court was delivered by: Gordon
JUSTICE GORDON delivered the opinion of the court:
This administrative review action was brought by the Plaintiff, Bansi D. Sharma, M.D., against Nikki Zollar, *fn1 Director of the Illinois Department of Professional Regulation (the Department) to contest the denial of his request for subpoenas pursuant to section 1110.140 of the Illinois Administrative Code (68 Ill. Admin. Code § 1110.140 (1988 Supp.)). Doctor Sharma sought a declaratory judgment that section 1110.140 of the Administrative Code was unconstitutionally void on its face and as applied, and he sought a writ of mandamus directing the Director of the Department to issue the requested subpoenas. The circuit court granted the Defendant's motion for summary judgment finding no due process violation and denying declaratory judgment relief based on the absence of an actual controversy. The Plaintiff appealed.
The issues presented for review are: whether the trial court properly granted summary judgment in favor of the Defendant because the plaintiff's declaratory judgment action was rendered moot by the dismissal of the underlying charges against him; and, if not, whether summary judgment was proper based upon a finding that section 1110.140 of the Illinois Administrative Code (68 Ill. Admin. Code § 1110.140 (1988 Supp.)) was not violative of due process.
On June 1, 1990, the plaintiff, an Illinois licensed physician, was charged by the Chief of Prosecution for the Department with violating the Medical Practice Act of 1987 (Ill. Rev. Stat. 1987, ch. 111, par. 4400-1 et seq.). The charges against the plaintiff, germane to this appeal, alleged that on approximately August 29, 1988 he was present in the KHN pharmacy located in Chicago Heights, Illinois and that he was supervising the work of a pharmacist technician byattempting to verify the accuracy of the prescriptions being filled. The charges further stated that this act constituted the unlawful practice of pharmacy without a license in violation of paragraph 4400-22(5) of the Medical Practice Act of 1987 (Ill. Rev. Stat. 1987, ch. 111, par. 4400-22(5)). The Department sought the revocation of the plaintiff's medical license.
On September 13, 1990, an administrative hearing was commenced by the Illinois State Medical Disciplinary Board (the Board) before a hearing officer appointed by the Director of the Department. (68 Ill. Admin. Code § 1110.170, 1110.180; Ill. Rev. Stat. 1987, ch. 111 § 4400-7, 4400-37) Prior to this date, the Department had identified James Thorns as its occurrence witness and supplied the Plaintiff with copies of several reports prepared by Thorns. Thorns was employed by the Department as a pharmacy investigator.
During the period of September 25, 1990 through October 9, 1990, the Director of the Department issued administrative subpoenas to several individuals compelling them to appear at the hearing scheduled for October 15, 1990. A subpoena also was issued to the keeper of records for Plaintiff's medical practice seeking the production of financial records relating to the building where the KHN pharmacy was located.
On October 19, 1990, the Plaintiff made a written request to the Chief of Prosecution of the Department *fn2 for the issuance of subpoenas to James Thorns; John Faber, the chief pharmacist for Little Company of Mary Hospital; and Edward Duffey, drug compliance coordinator for the Department. *fn3 The subpoenas requested payroll and attendance records for James Thorns from the Department and from Little Company of Mary Hospital for the period of August 1, 1988 through October 19, 1990; Thorns' tax records for 1988 and 1989; ethics statements filed with the State regarding secondary employment by Thorns; and documents authorizing and disclosing Thorns' employment outside the Department. Attached to plaintiff's request for subpoenas was an affidavit signed by Richard D. Romano. The affidavit stated that, on October 19, 1990, Romano had a telephone conversation with an employee of the pharmacy departmentof Little Company of Mary Hospital and that the employee stated that James Thorns was employed by that hospital pharmacy and had been so employed for some time.
On October 29, 1990, a hearing was held pursuant to Doctor Sharma's emergency motion to issue the subpoenas. The hearing officer appointed by the Director of the Department was the same individual assigned to hear the proceedings before the Medical Disciplinary Board. At the hearing, the Plaintiff indicated that the information requested in the subpoenas was needed to show that Thorns was physically present at Little Company of Mary Hospital in Evergreen Park, Illinois at the same time that he claimed to be at the KHN Pharmacy in Chicago Heights, Illinois. He informed the hearing officer that the ethical disclosure statements were needed to show that Thorns had not disclosed to the Department his secondary employment, as required, and thus was not a believable witness. *fn4
The Department conceded that Thorns worked as a pharmacist for the hospitals identified by the Plaintiff in addition to working as a Department investigator but explained that the outside employment was necessitated by a Department policy that pharmacy investigators maintain their pharmacy licenses in good standing. The Department argued, however, that the requested information was unnecessary because Thorns' presence at the KHN Pharmacy on August 29, 1988 was established inferentially by the Plaintiff's own testimony at the Board hearing.
The hearing officer denied Plaintiff's subpoena requests finding that he had failed to make a good faith showing that Thorns was not at the KHN Pharmacy on August 29, 1988. He also held that the plaintiff waived his right to call any witnesses ...