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April 18, 1996


The Honorable Justice McMORROW, dissenting.

The Honorable Justice McMORROW, dissenting:

The majority concludes that section 22(A)(24) of the Illinois Medical Practice Act of 1987 (Ill. Rev. Stat. 1991, ch. 111, par. 4400-1 et seq.) may be applied, consistent with the free speech provisions of the federal and State constitutions, to prohibit Desnick's direct telephone marketing. I dissent because I believe the majority has engaged in a premature "as applied" analysis of the free speech issue and because, even if an "as applied" analysis is appropriate at this stage of the proceedings, I do not believe Desnick's speech may be constitutionally prohibited.

At the outset it is to be noted that no argument has been made nor is there any suggestion in the record that Desnick's telemarketing speech is misleading, untruthful or unlawful. It is well established that commercial speech which is neither misleading nor unlawful is entitled to the protections of the free speech provisions of the federal and State constitutions. "Commercial expression not only serves the economic interest of the speaker, but also assists consumers and furthers the societal interest in the fullest possible dissemination of information." Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 561-62, 65 L. Ed. 2d 341, 348, 100 S. Ct. 2343, 2349 (1980). Indeed, " 'a particular consumer's interest in the free flow of commercial information *** may be as keen, if not keener by far, than his interest in the day's most urgent political debate.' " Rubin v. Coors Brewing Co., 514 U.S. 476, , 131 L. Ed. 2d 532, 538, 115 S. Ct. 1585, 1589 (1995), quoting Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 763, 48 L. Ed. 2d 346, 359, 96 S. Ct. 1817, 1826 (1976). Accordingly, in addressing the free speech issue in the case at bar, we must proceed cautiously, and take care to identify precisely the nature of the questions before us, lest we impermissibly intrude upon significant constitutional freedoms.

Section 22(A)(24) provides that any licensed practitioner of medicine may be disciplined for engaging in "solicitation of professional patronage by any corporation agents or persons, or profiting from those representing themselves to be agents of the licensee." Ill. Rev. Stat. 1991, ch. 111, par. 4400-22(A)(24). In October, 1992, the Department of Professional Regulation (the Department) filed an administrative disciplinary complaint in which it alleged that Desnick violated section 22(A)(24) by using a telemarketing firm to telephone individuals who were 65 years of age and older. These individuals allegedly were offered a free eye examination appointment and free transportation to the Desnick Eye Center, provided they answered a series of scripted questions which indicated that they had not previously visited the Desnick Eye Center; did not have a personal ophthalmologist; received Medicare; and did not belong to a health maintenance organization.

In response to the Department's administrative complaint, Desnick commenced this separate action in the circuit court of Cook County. In his complaint, Desnick requested a declaration that the absolute ban on physician solicitation contained in section 22(A)(24) is unconstitutional on its face and, in addition, requested permanent injunctive relief. In October 1994, Desnick moved for a preliminary injunction to prevent the Department from enforcing section 22(A)(24) against him. In December 1994, the circuit court granted the preliminary injunction and enjoined the Department from enforcing section 22(A)(24) pending a determination of the merits of the action. The circuit court found, inter alia, that Desnick was likely to succeed on the merits because section 22(A)(24) violated the free speech provisions of the federal and State constitutions.

I agree with the majority's preliminary determination that this court has jurisdiction to review the instant case. However, I note the somewhat unusual posture in which this matter has come before us. The purpose of a preliminary injunction is to preserve the status quo of the parties before the court, not to make a final determination on the merits of permanent injunctive relief. People ex rel. Sklodowski v. State, 162 Ill. 2d 117, 131, 205 Ill. Dec. 63, 642 N.E.2d 1180 (1994); Buzz Barton & Associates, Inc. v. Giannone, 108 Ill. 2d 373, 386, 91 Ill. Dec. 636, 483 N.E.2d 1271 (1985). "The purposes of [the preliminary and permanent injunctions] are different and distinct. The proof that is required to support them is not the same." Buzz Barton, 108 Ill. 2d at 386. In the instant case, by declaring section 22(A)(24) unconstitutional, the circuit court went beyond maintaining the status quo and rendered what was, in effect, a final adjudication on the merits. This conclusion was reached following a preliminary injunction proceeding in which no discovery took place and no evidentiary record was established. While a lack of an evidentiary record may not be problematic in reviewing every instance where permanent injunctive relief is granted, as discussed below. I believe it has created difficulties in the case at bar. However, because the circuit court entered an order declaring section 22(A)(24) unconstitutional, I agree that this court has jurisdiction to hear the instant appeal.

Having determined that this court has jurisdiction, the majority next addresses the free speech issue. Despite the lack of an evidentiary record, and despite the fact that Desnick raised a facial challenge to section 22(A)(24) in both the circuit court and this court, the majority concludes that Desnick's free speech argument must be treated as a challenge to the constitutional validity of section 22(A)(24) as applied to his particular speech. The majority reasons that because Desnick may not contest section 22(A)(24) on facial overbreadth grounds, his argument must be reviewed as an applied challenge. I agree with the majority that Desnick's facial attack on section 22(A)(24) is, fundamentally, an overbreadth argument. Desnick contends that some physician solicitation is constitutional and therefore, because section 22(A)(24) bans all physician solicitation, that section is unconstitutionally overbroad. I also agree with the majority that Desnick may not successfully contest the constitutionality of section 22(A)(24) on overbreadth grounds. The Supreme Court has made clear that a facial overbreadth challenge is not available to plaintiffs contesting the validity of a statute regulating commercial speech. Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 106 L. Ed. 2d 388, 109 S. Ct. 3028 (1989). While it is not the case that a plaintiff may never facially challenge a statute regulating commercial speech (see, e.g., Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico, 478 U.S. 328, 92 L. Ed. 2d 266, 106 S. Ct. 2968 (1986) (examining facial validity of law regulating commercial speech under Central Hudson Gas test)), in the case at bar, Desnick's particular facial challenge is not viable.

However, the fact that Desnick's facial argument is ineffective does not mean that this court may, by default, review Desnick's challenge on an unconstitutional as applied basis. As a general rule, courts do not rule on the constitutionality of statutes during preliminary injunction hearings. Sklodowski, 162 Ill. 2d at 132, quoting Toushin v. City of Chicago, 23 Ill. App. 3d 797, 803, 320 N.E.2d 202 (1974); Regional Transportation Authority v. Burlington Northern, Inc., 100 Ill. App. 3d 779, 786, 55 Ill. Dec. 818, 426 N.E.2d 1143 (1981). This is so because a preliminary injunction is an emergency measure, and the hearing which accompanies the preliminary injunction is, by design, truncated. Any "facts" produced during such a proceeding are not binding for purposes of a trial on the merits ( Electronic Design & Manufacturing, Inc. v. Konopka, 272 Ill. App. 3d 410, 411 n.1, 208 Ill. Dec. 563, 649 N.E.2d 619 (1995)) because those "facts" may be significantly altered once a trial on the merits is held. Logically then, the general rule that statutes should not be declared unconstitutional during preliminary injunction hearings applies with even greater force in instances where the allegation is that the statute is unconstitutional as applied. See, e.g., Walters v. National Ass'n of Radiation Survivors, 473 U.S. 305, 87 L. Ed. 2d 220, 105 S. Ct. 3180 (1985) (O'Connor, J., concurring, joined by Blackmun, J.).

In the case at bar, Desnick's complaint contested the facial validity of section 22(A)(24). As such, Desnick never stipulated to the nature or existence of his telemarketing. Indeed, Desnick maintained that the facts regarding his particular solicitations were "irrelevant" to his facial challenge. The circuit court agreed with Desnick and denied the Department's repeated requests to develop an evidentiary record. By reviewing Desnick's argument as an unconstitutional as applied challenge, the majority today decides the merits of this case, not on the basis of evidence, but on the basis of the Department's untested allegations. My research has revealed no case--nor has the majority cited to any--which holds that an allegation in a disciplinary complaint may be taken as true for purposes of deciding, on the merits, that a statute may be applied to a plaintiff who is contesting the constitutional validity of that statute. It is entirely premature, especially in light of the intensive, fact-oriented nature of commercial speech doctrine, to engage in an "as applied" analysis at this stage of the proceedings. I submit that the proper remedy in the case at bar is to vacate that portion of the circuit court's order declaring section 22(A)(24) unconstitutional under the free speech provisions of the federal and State constitutions and remand for a full proceeding on the merits.

While I do not believe that this court should be addressing the merits of an "as applied" free speech challenge to section 22(A)(24) at this time, in light of the majority's disposition, I nevertheless feel compelled to address the issue. In the following discussion, I proceed under the assumption that the Department's allegations regarding Desnick's telephone marketing are, in fact, true.

In its original multicount disciplinary complaint, the Department alleged other charges against Desnick, including several counts of malpractice. However, the only count at issue in the case at bar is the count concerning Desnick's direct telephone marketing. Despite the majority's repeated references to the Department's other allegations, those counts are irrelevant to the sole issue before us, i.e., the free speech issue. Ragin v. New York Times Co., 923 F.2d 995 (2d Cir. 1991), cited by the majority (slip op. at 12), is not to the contrary. At issue in Ragin was whether an action brought against a newspaper publisher could withstand a motion to dismiss where the complaint alleged that models used in housing advertisements in a newspaper indicated racial preference in violation of the Fair Housing Act. The court concluded that an ad which indicated racial preference furthered an illegal end and could not be considered protected commercial speech. Therefore, the plaintiffs had alleged facts sufficient to withstand a motion to dismiss. Ragin, 923 F.2d at 1002-03. Ragin does not stand for the proposition that other unrelated and unproven allegations may he used to buttress the conclusion that Desnick's speech may constitutionally be prohibited. Thus, with respect to the free speech issue, the narrow question before us is whether the Department's enforcement of section 22(A)(24) against Desnick's phone marketing, standing alone, is unconstitutional.

The constitutionality of prohibiting Desnick's telephone marketing must be addressed by applying the framework for analyzing commercial speech articulated in Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 65 L. Ed. 2d 341, 100 S. Ct. 2343 (1980). Under the Central Hudson Gas test, commercial speech which is not misleading or unlawful may be restricted only if the government's interest in doing so is substantial, the restrictions directly advance the government's asserted interest, and the restrictions are no more extensive than necessary to serve that interest. Central Hudson Gas, 447 U.S. at 565-66, 65 L. Ed. 2d at 350-51, 100 S. Ct. at 2351. Further, the State's burden to demonstrate that the challenged regulation directly advances the government's interest "is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree." Edenfield v. Fane, 507 U.S. 761, 771, 123 L. Ed. 2d 543, 555, 113 S. Ct. 1792, 1800 (1993).

The majority acknowledges that, even if the Department's allegations are accepted as true, there is no direct evidence of harm resulting from Desnick's phone calls. *fn1 Slip op. at 13 ("Neither is it shown that persons responding to Desnick's solicitations are persuaded in fact to have unnecessary surgeries"). Relying on Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 56 L. Ed. 2d 444, 98 S. Ct. 1912 (1978), the majority then concludes that because of the potential for harm resulting from Desnick's telephone marketing, the prohibition of that speech is justified as a preventative measure. However, Ohralik does not support the position of the majority.

In Ohralik, a disciplinary rule prohibiting in-person solicitation was applied to an attorney who approached two victims of an automobile accident in order to secure agreements to represent them in subsequent litigation. The attorney had visited one of the victims while she was still in traction in a hospital bed, and the other victim shortly after she had returned home from the hospital. The Supreme Court concluded that a preventative rule was justified under these circumstances because the situation presented was "inherently conducive to overreaching and other forms of misconduct." Ohralik, 436 U.S. at 464, 56 L. Ed. 2d at 459, 98 S. Ct. at 1923. The Court explained:

"The potential for overreaching is significantly greater when a lawyer, a professional trained in the art of persuasion, personally solicits an unsophisticated, injured, or distressed lay person. Such an individual may place his trust in a lawyer, regardless of the latter's qualifications or the individual's actual need for legal representation, simply in response to persuasion under circumstances conducive to uninformed acquiescence. Although it is argued that personal solicitation is valuable because it may apprise a victim of misfortune of his legal rights, the very plight of that person not only makes him more vulnerable to influence but also may make advice all the more intrusive. Thus, under these adverse conditions the overtures of an uninvited lawyer may distress the solicited individual simply because of their obtrusiveness and the invasion of the individual's privacy, even when no other harm materializes. Under such circumstances, it is not unreasonable for the State to presume that in-person solicitation by lawyers more often than not will be injurious to the person solicited." Ohralik, 436 U.S. at 465-66, 56 L. Ed. 2d at 459-60, 98 S. Ct. at 1923-24.

Subsequent Supreme Court decisions have made clear that the holding in Ohralik is a narrow one and that Ohralik "does not stand for the proposition that blanket bans on personal solicitation by all types of professionals are constitutional in all circumstances." Edenfield, 507 U.S. at 774, 123 L. Ed. 2d at 557, 113 S. Ct. at 1802. Instead, "the constitutionality of a ban on personal solicitation will depend upon the identity of the parties and the precise circumstances of the solicitations." Edenfield, 507 U.S. at 774, 123 L. Ed. 2d at 557, 113 S. Ct. at 1802.

In the instant case, the circumstances presented do not support the preventative ban on Desnick's telephone marketing. First, while it was appropriate in Ohralik to conclude that the personal injury victims were left in a vulnerable physical and emotional condition because of their automobile accident, I do not think it is appropriate to conclude that because an individual is 65 years old or on Medicare he or she is particularly susceptible to the entreaties of a telemarketer or is incapable of rejecting Desnick's offers. Cf. Florida Bar v. Went For It, Inc., 515 U.S. , 132 L. Ed. 2d 541, 115 S. Ct. 2371 (1995) (individuals targeted for solicitation in the immediate aftermath of an accident or disaster had significant privacy interest because of their special vulnerability in a time of personal grief and trauma); In re Komar, 125 Ill. 2d 427, 446, 126 Ill. Dec. 930, 532 N.E.2d 801 (1988) (upholding discipline of attorney who engaged in untruthful and in-person solicitation of mortgage foreclosure defendants characterized by the court as "desperate and distraught").

Moreover, even if it can be concluded that the group of individuals solicited in the case at bar are incapable of effectively dealing with telemarketers, that fact alone is not dispositive. In Shapero v. Kentucky Bar Ass'n, 486 U.S. 466, 100 L. Ed. 2d 475, 108 S. Ct. 1916 (1988), an attorney requested permission from the appropriate state authority to send the following letter to persons who had foreclosure suits filed against them:

" 'It has come to my attention that your home is being foreclosed on. If this is true, you may be about to lose your home. Federal law may allow you to keep your home by ORDERING your creditor [sic] to STOP and give you more time to pay them.

'You may call my office anytime from 8:30 a.m. to 5:00 p.m. for FREE information on how you can keep your home.

'Call NOW, don't wait. It may surprise you what I may be able to do for you. Just call me and tell me that you got this letter. Remember it is FREE, there is NO charge for calling.' " (Emphasis in original.) Shapero, 486 U.S. at 469, 100 L. Ed. 2d at 482, 108 S. Ct. at 1919.

The state authority denied the attorney's request. Upon review, the Supreme Court struck down the state's preventative ban, even though the attorney's mailing was targeted to those who were in a vulnerable position. The Court noted that the relevant inquiry was not whether there existed potential clients whose condition made them susceptible to undue influence, but whether the "mode of communication" posed a serious danger that lawyers would exploit any such susceptibility. (Emphasis added.) Shapero, 486 U.S. at 474, 100 L. Ed. 2d at 485, 108 S. Ct. at 1922. The Court concluded that the mailing did not pose the sine risk of overreaching as did in-person solicitation.

In the instant case, the alleged "mode of communication" is scripted, telephone marketing. In the series of Supreme Court decisions regarding the first amendment protection afforded attorneys' commercial speech, the Court has not addressed telephone marketing. However, the Court has consistently drawn a distinction between face-to-face solicitation and print or mail solicitation. Compare Ohralik, 436 U.S. 447, 56 L. Ed. 2d 444, 98 S. Ct. 1912, with Shapero, 486 U.S. 466, 100 L. Ed. 2d 475, 108 S. Ct. 1916, and Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626, 85 L. Ed. 2d 652, 105 S. Ct. 2265 (1985). In upholding the ban on in-person solicitation in Ohralik, the Court noted two principal reasons for differentiating between in-person solicitation and other methods of soliciting business. First, unlike print or mail advertising, "in-person solicitation may exert pressure and often demands an immediate response, without providing an opportunity for comparison or reflection." Ohralik, 436 U.S. at 457, 56 L. Ed. 2d at 454, 98 S. Ct. at 1919. Thus, the "imminence of harm" is a factor that makes in-person solicitation less protected than other forms of solicitation. Ohralik, 436 U.S. at 457 n. 13, 56 L. Ed. 2d at 454 n.13, 98 S. Ct. at 1919 n.13; see also Zauderer, 471 U.S. at 642, 85 L. Ed. 2d at 667, 105 S. Ct. at 2277 ("a printed advertisement, unlike a personal encounter initiated by an attorney, is not likely to involve pressure on the potential client for an immediate yes-or-no answer to the offer of representation"). Second, "unlike the reader of an advertisement, who can 'effectively avoid further bombardment of [his or her] sensibilities simply by averting [his or her] eyes,' [citations] the target of the [in-person] solicitation may have difficulty avoiding being importuned and distressed *** ." Ohralik, 436 U.S. at 465 n.25, 56 L. Ed. 2d at 459 n.25, 98 S. Ct. at 1923 n.25; see also Shapero, 486 U.S. at 475-76, 100 L. Ed. 2d at 486, 108 S. Ct. at 1923 ("A letter, like a printed advertisement (but unlike a lawyer), can readily be put in a drawer to be considered later, ignored, or discarded").

Neither of the factors which differentiated in-person solicitation, and permitted the preventative suppression of speech in Ohralik are present in the case at bar. There is no immediate threat of harm from Desnick's phone calls. Unlike the situation in Ohralik, where the attorney pressed the accident victims for an immediate, signed agreement to represent the victims, the Department has not alleged that any financial commitments or agreements to perform surgery were made during the phone calls. In the instant case, the only immediate result of a successful phone call is the scheduling of an eye examination--a result which can be reconsidered once the call has ended and which is easily cancelled or avoided. Cf. Zauderer, 471 U.S. at 642, 85 L. Ed. 2d at 667, 105 S. Ct. at 2277. Indeed, the telemarketing script contained in the pleadings directs the telemarketer to close the phone call by saying: "If you change your mind about attending the eye examination, or have any questions, please call this toll free number during business hours: 1-800-EYE-CARE." This is an altogether different situation than that present in Ohralik. See Texans Against Censorship, Inc., v. State Bar of Texas, 888 F. Supp. 1328, 1353 (E.D. Tex. 1995) (upholding ban on attorney phone solicitation, in part because recipients of phone calls could be pressured into forming oral contract for representation over the phone); Florida Bar, 515 U.S. at , 132 L. Ed. 2d at 553-54, 115 S. Ct. at 2379 (attorneys' direct mail solicitation of personal injury victims within 30 days of accident or disaster was immediately harmful because receipt of letter confronted victims with information about their misfortunes while their "wounds [were] still open"). Also, like the reader who can "avert his eyes" if bothered by a print advertisement, if an individual is bothered by the phone call, that individual can simply terminate the call. See Texans Against Censorship, 888 F. Supp. at 1353 ("recipients of telephone solicitations have a much more effective means of ending unpleasant or harassing calls than those subjected to an in-person solicitation").

In the instant case, if it had been alleged, for example, that the telemarketers were asking individuals known to have eye problems to purchase medical services, and if the telemarketers requested or procured a credit card number for payment, I would be more inclined to equate such an operation with that in Ohralik. In the absence of such or similar circumstances, however, I believe it is inappropriate to make such a comparison. Indeed, by doing so, the majority has improperly extended the limited holding of the Ohralik decision.

In reaching this conclusion I emphasize that I do not suggest that Desnick be permitted to engage in malpractice or the mistreatment of patients. If the separate counts alleging malpractice are proven, then Desnick should he appropriately disciplined. However, we should not lose sight of the fact that the malpractice counts are not relevant to whether a preventative rule, as applied to the circumstances alleged here, is likely to survive constitutional scrutiny.

As the Supreme Court has noted, " 'broad prophylactic rules in the area of free expression are suspect. Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.' " Edenfield, 507 U.S. at 777, 123 L. Ed. 2d at 559, 113 S. Ct. at 1803-04, quoting National Ass'n for the Advancement of Colored People v. Button, 371 U.S. 415, 438, 9 L. Ed. 2d 405, 421, 83 S. Ct. 328, 340 (1963). The majority's decision sweeps too broadly. The majority's decision allows the State to constitutionally prohibit commercial speech which is truthful, nonmisleading and poses no imminent threat of harm. The negative impact of the majority decision on telemarketing is substantial and unnecessary. The perceived harm to the public from the conduct involved in this case is either nonexistent or speculative. This is an unfortunate precedent which encroaches on fundamental constitutional rights of free speech and one which is not supported by the relevant Supreme Court decisions. Therefore, I respectfully dissent.

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