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04/18/96 JAMES H. DESNICK v. DEPARTMENT

April 18, 1996

JAMES H. DESNICK, M.D., APPELLEE,
v.
THE DEPARTMENT OF PROFESSIONAL REGULATION ET AL., APPELLANTS.



The Honorable Justice Freeman delivered the opinion of the court. Justice McMORROW, dissenting.

The opinion of the court was delivered by: Freeman

The Honorable Justice FREEMAN delivered the opinion of the court:

This case concerns whether 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 constitutionally applied to regulate commercial speech by plaintiff (U.S. Const., amends. I, XIV; Ill. Const. 1970, art. I, § 4), and whether the provision is also unconstitutionally vague on its face (U.S. Const., amends. I, XIV; Ill. Const. 1970, art. I, § 2). We conclude that, contrary to the circuit court's finding below supporting the grant of a temporary restraining order, application of the provision to regulate plaintiff's speech in these circumstances is constitutional, and that the provision is not vague on its face. For reasons which follow, we reverse the judgment of the circuit court of Cook County, granting the plaintiff, James H. Desnick,M.D., a temporary restraining order on the basis of the invalidity of section 22(A)(24), and remand for further proceedings.

Background

In 1992, defendants, the Illinois Department of Professional Regulation (Department) and its director, Nikki M. Zollar, commenced disciplinary proceedings against plaintiff, Dr. James H. Desnick, an ophthalmologist licensed to practice medicine in Illinois. The multicount disciplinary complaint sought the suspension or revocation of Dr. Desnick's license or other disciplinary action on several grounds, including the alleged violation of section 22(A)(24) of the Medical Practice Act (Act).

Section 22(A)(24) provides:

"The Department may revoke, suspend, place on probationary status, or take any other disciplinary acts as the Department may deem proper with regard to the license or visiting professor permit of any person issued under this Act to practice medicine, or to treat human ailments without the use of drugs and without operative surgery upon any of the following grounds:

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).

According to the pleadings, Desnick violated this provision by utilizing a telemarketing firm to telephone persons aged 65 years and over and offer them a free eye examination appointment and free transportation to the Desnick Eye Center. These services were offered provided the persons answered the telemarketer's scripted questions, indicating they had not previously visited the Desnick Eye Center; did not belong to an health maintenance organization (HMO); did not have a personal ophthalmologist, but were insured under Medicare. (See Appendix.)

Shortly thereafter, Desnick filed this action in the circuit court of Cook County, requesting declaratory judgment and permanent injunctive relief. The action challenged section 22(A)(24) on grounds that the provision was unconstitutionally vague and overbroad and also violated free speech under the federal and State Constitutions. Desnick immediately moved for both a preliminary injunction and a temporary restraining order to prohibit defendants from enforcing section 22(A)(24), pending a determination on the merits. In December 1992, the circuit court entered a temporary restraining order enjoining defendants from effectively enforcing section 22(A)(24) against Desnick.

In May 1993, defendants filed their first-amended complaint in the disciplinary proceedings, which re-alleged in count XVI that Desnick had violated section 22(A)(24).

In October 1994, Desnick sought leave to file an amended complaint because defendants reasserted a violation of section 22(A)(24) in their first-amended disciplinary complaint. Desnick's amended complaint requested that section 22(A)(24) be declared unconstitutional and defendants be permanently enjoined from enforcing the provision. Desnick also moved on that same day for a preliminary injunction to enjoin defendants from enforcing section 22(A)(24) against him, pending a resolution of the case on the merits. On December 7, 1994, Desnick was granted leave to and did immediately file his amended complaint. On December 13, 1994, defendants moved to dismiss the amended complaint for lack of subject matter jurisdiction based on sovereign immunity.

On December 22, 1994, following a hearing, the circuit court found that Desnick satisfied the requirements for a preliminary injunction. The court found, inter alia, that it was reasonably likely that Desnick would succeed on the merits of his complaint because he had demonstrated that section 22(A)(24) violates the free speech provisions of the federal and State Constitutions and was void for vagueness in violation of both Constitutions' due process provisions. The trial court granted Desnick's motion for a preliminary injunction and enjoined defendants from prosecuting count XVI, "pending a determination of the merits of [the] action." In that order, also, the court denied defendants' motion to dismiss the complaint.

On January 5, 1995, defendants filed a notice of appeal to this court, pursuant to Supreme Court Rule 302(a), seeking reversal of the circuit court's December 22, 1994, order, denying their motion to dismiss, and a finding that section 22(A)(24) of the Act is constitutional as applied to Desnick's conduct. 134 Ill. 2d R. 302(a).

Jurisdiction

Preliminarily, we consider our jurisdiction to review this matter. Supreme Court Rule 302(a)(1) allows for direct appeals to this court from final judgments of the circuit court in cases where a State statute is held invalid. See 134 Ill. 2d R. 302(a)(1). Clearly, in this case, the circuit court effectively ruled that section 22(A)(24) was unconstitutional. The circuit court granted the preliminary injunction based on, inter alia, the finding that Desnick was likely to prevail on the merits of his complaint because he had shown section 22(A)(24) to be unconstitutional. Cf. Sommer v. Village of Glenview, 79 Ill. 2d 383, 38 Ill. Dec. 170, 403 N.E.2d 258 (1980) (interpreting trial court's statements and order as holding state statute unconstitutional); Garcia v. Tully, 72 Ill. 2d 1, 7, 17 Ill. Dec. 820, 377 N.E.2d 10 (1978) (trial court opinion and order found to apparently rest on finding state statute unconstitutional). An order granting a preliminary injunction, however, is an interlocutory order, which is normally appealable as a matter of right to the appellate court under Supreme Court Rule 307. See 134 Ill. 2d R. 307.

Nevertheless, this court has jurisdiction to permit a direct appeal from other than final judgments. See Garcia, 72 Ill. 2d at 7; 134 Ill. 2d R. 302(b) (permitting appeal to be taken directly to supreme court in cases where the public interest requires expeditious determination). Further, where the order appealed from rests on a finding of a statute's unconstitutionality, this court has assumed jurisdiction under Rule 302(a), notwithstanding the finality requirement. Garcia, 72 Ill. 2d 1, 17 Ill. Dec. 820, 377 N.E.2d 10. Consequently, we will review the matter.

Standard of Review

A party seeking a preliminary injunction must establish, inter alia, that he is likely to succeed on the merits. The decision to grant or deny a preliminary injunction rests within the sound discretion of the trial court, and a reviewing court will not disturb the decision absent a clear abuse of that discretion. See Chicago Health Clubs, Inc. v. Picur, 124 Ill. 2d 1, 7-8, 124 Ill. Dec. 87, 528 N.E.2d 978 (1988).

First Amendment Challenge

Defendants first contend that the trial court erred by relying on the overbreadth doctrine, applicable to core first amendment speech, rather than relying on the framework set out 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). that applies to commercial speech. Defendants secondarily contend that, under the Central Hudson framework, section 22(A)(24) may be constitutionally applied to prohibit Desnick's elderly Medicare recipient-targeted telephone solicitation, offering a free eye exam appointment and transportation to his clinic, because: (1) that solicitation does not constitute protected speech under the first amendment, and even if that solicitation is protected, section 22(A)(24) is (2) supported by the State's substantial interests in regulating the medical profession, in preventing overreaching by physicians, and in protecting its citizens' right to privacy; (3) directly and materially advances those interests; and (4) "narrowly drawn." See Central Hudson Gas, 447 U.S. at 565-66, 65 L. Ed. 2d at 350-51, 100 S. Ct. at 2351 (referring to a four-part analysis).

Desnick contends his solicitation constitutes protected speech under the first amendment and that section 22(A)(24) may not be constitutionally applied to prohibit his solicitation because the restriction does not satisfy the three remaining prongs of the Central Hudson Gas test. Desnick also maintains that the trial court did not actually rely on the overbreadth doctrine, although he argued it.

Commercial speech consists of "expression related solely to the economic interests of the speaker and its audience." Central Hudson Gas, 447 U.S. at 561, 65 L. Ed. 2d at 348, 100 S. Ct. at 2349. Prior to the mid-1970s, the Supreme Court took the position that the first amendment did not protect commercial speech. See Valentine v. Chrestensen, 316 U.S. 52, 54, 86 L. Ed. 1262, 1265, 62 S. Ct. 920, 921 (1942).

In 1976, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 48 L. Ed. 2d 346, 96 S. Ct. 1817 (1976), the Court changed course, invalidating a state statute barring pharmacists from advertising prescription drug prices. The Court found that purely commercial speech is entitled to first amendment protection from unwarranted governmental regulation. Virginia State Board of Pharmacy, 425 U.S. at 761-62, 48 L. Ed. 2d at 358-59, 96 S. Ct. at 1825-26. The Court expressed the belief that the free flow of commercial information is indispensable to the proper allocation of resources in a free enterprise system because it informs the numerous private decisions that drive the system. Virginia State Board of Pharmacy, 425 U.S. at 765, 48 L. Ed. 2d at 360, 96 S. Ct. at 1827.

Recently, the Court expressed its view that solicitation, unlike other forms of commercial expression, allows for direct and spontaneous communication between buyer and seller and also "enables the seller to direct his proposals toward those consumers whom he has a reason to believe would be most interested in what he has to sell. For the buyer, [solicitation] provides an opportunity to explore in detail the way in which a particular product or service compares to its alternatives in the market." Edenfield v. Fane, 507 U.S. 761, , 123 L. Ed. 2d 543, 552, 113 S. Ct. 1792, 1798 (1993).

Nevertheless, commercial speech remains subject to state regulation because of the nature of such speech. See Virginia State Board of Pharmacy, 425 U.S. at 771 n.24, 48 L. Ed. 2d at 364 n.24, 96 S. Ct. at 1830 n.24. Regulation of commercial speech is permissible by means of appropriate time, place, and manner restrictions and where such speech is false or misleading, or related to unlawful activity. Virginia State Board of Pharmacy, 425 U.S. at 771-72, 48 L. Ed. 2d at 363-65, 96 S. Ct. at 1830-31.

The Court continues to carefully draw a commonsense distinction between speech proposing a commercial transaction, an area traditionally subject to government regulation, and other varieties of speech. See Florida Bar v. Went For It, Inc., 515 U.S. , , 132 L. Ed. 2d 541, 549, 115 S. Ct. 2371, 2375(1995); Central Hudson Gas, 447 U.S. at 562, 65 L. Ed. 2d at 348, 100 S. Ct. at 2349; Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 455-56, 56 L. Ed. 2d 444, 453, 98 S. Ct. 1912, 1918 (1978); Bates v. State Bar, 433 U.S. 350, 381, 53 L. Ed. 2d 810, 834, 97 S. Ct. 2691, 2707 (1977). "'"Commercial speech [enjoys] a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values," and is subject to "modes of regulation that might be impermissible in the realm of noncommercial expression."'" Florida Bar, 515 U.S. at , 132 L. Ed. 2d at 549, 115 S. Ct. at 2375, quoting Board of Trustees of the State University of New York, 492 U.S. 469, 477, 106 L. Ed. 2d 388, 402, 109 S. Ct. 3028, 3033, quoting Ohralik, 436 U.S. at 456, 56 L. Ed. 2d at 453, 98 S. Ct. at 1918; see also Scott v. Ass'n for Childbirth at Home, International, 88 Ill. 2d 279, 287, 58 Ill. Dec. 761, 430 N.E.2d 1012 (1981). The Court takes the position that a parity of constitutional protections for commercial and noncommercial speech could dilute the force of the first amendment's guarantee with respect to noncommercial speech. Florida Bar, 515 U.S. at , 132 L. Ed. 2d at 549, 115 S. Ct. at 2375. Notably, the Court refrains from approaching a constitutional challenge to commercial speech in the same manner as noncommercial speech.

The Court has made clear that the overbreadth doctrine, traditionally utilized in analyzing challenges to a regulation's constitutionality, does not apply to commercial speech challenges. In analyzing challenges to a regulation's constitutionality, the Court differentiates between an as-applied challenge, asserting that the regulation is not narrowly drawn, and an overbreadth challenge. A person making an as-applied challenge claims that the acts of his that are the subject of the litigation fall outside what a properly drawn regulation could cover. In contrast, a person making an overbreadth challenge attacks the regulation's validity, facially, claiming that it infringes protected speech even if it might constitutionally be applied to him. See Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 482-83, 106 L. Ed. 2d 388, 405, 109 S. Ct. 3028, 3036 (1989). The overbreadth doctrine was designed as a departure from traditional rules of standing, enabling persons who are themselves unharmed by a statute to challenge it facially on the ground that it may be applied unconstitutionally to others in situations not before the court. Board of Trustees of the State University of New York, 492 U.S. at 484, 106 L. Ed. 2d at 406, 109 S. Ct. at 3037. The doctrine derives from the recognition that unconstitutional restriction of expression may deter protected speech by parties not before the court and thereby escape judicial review. Central Hudson Gas, 447 U.S. at 565 n.8, 65 L. Ed. 2d at 350 n.8, 100 S. Ct. at 2351 n.8. In contrast, any party challenging the constitutionality of a restriction on commercial speech must necessarily demonstrate his standing by first showing that his particular conduct is protected under the first amendment.

The overbreadth doctrine is not applied by the Court to commercial speech because such expression is considered less likely to be and is therefore not easily deterred by overbroad regulation. See Central Hudson Gas, 447 U.S. at 565 n.8, 65 L. Ed. 2d at 350 n.8, 100 S. Ct. at 2351 n.8. Commercial speech will not be facially invalidated on grounds of overbreadth because commercial speech is considered "more hardy, less likely to be 'chilled,' and not in need of surrogate litigators." Board of Trustees of the State University of New York, 492 U.S. at 481, 106 L. Ed. 2d at 404, 109 S. Ct. at 3035.

Based on concerns recognizing the distinction between commercial and noncommercial speech, the Court engages in an "intermediate scrutiny" of restrictions on commercial speech. The protection available for particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation. Central Hudson Gas, 447 U.S. at 563, 65 L. Ed. 2d at 349, 100 S. Ct. at 2350. A challenge to application of a commercial speech restriction is analyzed under the four-part framework set out in Central Hudson Gas. See Florida Bar, 515 U.S. at , 132 L. Ed. 2d 541, 549, 115 S. Ct. 2371, 2375. Under Central Hudson Gas, it must first be determined whether the commercial speech at issue is protected speech under the first amendment, that is, the expression concerns lawful activity and is not misleading. If so, the commercial speech may be regulated, nonetheless, provided: the government asserts a substantial interest in support of its regulation; the regulation is shown to directly and materially advance that interest; and there exists a reasonable "fit" between the government's ends and the means chosen to accomplish those ends. See Florida Bar, 515 U.S. at , 132 L. Ed. 2d at 549, 115 S. Ct. at 2375-76; Central Hudson Gas, 447 U.S. at 564-65, 65 L. Ed. 2d at 350, 100 S. Ct. at 2350. The government bears the burden of justifying its restriction. See Edenfield, 507 U.S. at , 123 L. Ed. 2d at 555, 113 S. Ct. at 1800; Zauderer v. Office of Disciplinary Counsel of the Supreme Court, 471 U.S. 626, 647, 85 L. Ed. 2d 652, 670, 105 S. Ct. 2265, 2280 (1985).

The parties apparently accept without dispute that the targeted telephone solicitation at issue here is commercial speech. Thus, because the overbreadth doctrine is not applicable to this area, we must determine initially whether Desnick's particular solicitation constitutes protected speech under the first amendment.

Defendants point out that the solicitation targets elderly, Medicare recipients who are not members of an HMO or currently under the care of an opthalmogist. Defendants claim that these persons are then offered a seemingly "something for nothing" proposition, a free eye exam and free transportation to and from Desnick's clinic. Defendants maintain that Desnick's purpose is not to create a long-lasting doctor-patient relationship for medical care. Rather, his purpose is to induce persons into his clinics where they can be persuaded to undergo eye surgery, the high profit earner for ophthalmologists. Defendants maintain that once in the clinic, with a display of superior medical knowledge, it is a relatively easy matter to influence these prospective patients to have surgery no matter how unnecessary or risky. The surgery also can be readily sold as "free" to the prospective patients because it would be billed to Medicare.

Defendants argue that such solicitation is not protected, as it is not conducive to informed and reliable decisionmaking by the recipient, and it fosters the potential for harmful medical abuse and overreaching which is manifest. Moreover, defendants claim Desnick's solicitation encourages the subordination of a physician's medical judgment to pecuniary gain, which is medically unethical and debases the profession.

Desnick maintains that his representatives' telephone solicitation is conducive to informed decisionmaking because the recipients need only terminate the telephone call and they have the option to decide whether they will keep any scheduled appointment they make at Desnick's Clinic. Desnick asserts that the provision of ophthalmic services is lawful activity and was not alleged by defendants to be misleading. Desnick's asserts that his representatives merely provide information about his clinic's ophthalmic services.

Because the first amendment's concern for commercial speech is based on the "informational function of advertising," the government may legitimately suppress commercial expression that is more likely to deceive the public than inform it, or that relates to illegal activity. See Central Hudson Gas, 447 U.S. at 563, 65 L. Ed. 2d at 349, 100 S. Ct. at 2350; see also Scott v. Ass'n for Childbirth at Home, International, 88 Ill. 2d 279, 287, 58 Ill. Dec. 761, 430 N.E.2d 1012 (1981). "Untruthful speech, commercial or otherwise, has never been protected for its own sake." Virginia State Board of Pharmacy, 425 U.S. at 771-72, 48 L. Ed. 2d at 364-65, 96 S. Ct. at 1830-31. And, while truthful advertising related to lawful activities is protected under the first amendment, where the particular content or method of the advertising suggests that it is inherently misleading or when experience has proved that in fact such advertising is subject to abuse, the states may impose appropriate restrictions. See In re R.M.J., 455 U.S. 191, 203, 71 L. Ed. 2d 64, 74, 102 S. Ct. 929, 937 (1982). There can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity. The government may ban forms of communication more likely to deceive the public than inform it. Bates v. State Bar, 433 U.S. 350, 383, 53 L. Ed. 2d 810, 835, 97 S. Ct. 2691, 2709 (1977).

Advertising by the professions poses special risks of deception. Bates, 433 U.S. 350, 53 L. Ed. 2d 810, 97 S. Ct. 2691; In re R.M.J., 455 U.S. at 200, 71 L. Ed. 2d at 72, 102 S. Ct. at 936. "Physicians and lawyers *** do not dispense standardized products; they render professional services of almost infinite variety and nature, with the consequent enhanced possibility for confusion and deception if they were to undertake certain kinds of advertising." (Emphasis in original.) Virginia State Board of Pharmacy, 425 U.S. at 773 n.25, 48 L. Ed. 2d at 365 n.25, 96 S. Ct. at 1831 n.25.

Illinois cases are instructive in the area of first amendment entitlement. In Talsky v. Department of Registration & Education, 68 Ill. 2d 579, 12 Ill. Dec. 550, 370 N.E.2d 173 (1977), the Department of Registration and Education suspended a chiropractor's license to practice on grounds that he advertised to solicit professional business in violation of section 16(13) of the Medical Practice Act. The chiropractor challenged the constitutionality of section 16(13). His ads included statements that "health is in reach through chiropractic" and "elimination of the NEED for drugs *** is not a farfetched idea, but undisputed fact!!" The ads offered free chicken and refreshments and advanced other promotional statements.

The Talsky court examined authority expressing, and concurred with the view, that because the public is particularly susceptible to advertising or promises of medical relief, there exists a potential for abuse which the State has a compelling interest to guard against. Talsky, 68 Ill. 2d at 584-85. As compared to advertisements found to be "restrained professional advertising," the court found the chiropractor's advertisements uninformative, misleading, and therefore not entitled to first amendment protection. Talsky, 68 Ill. 2d at 591. Talsky essentially found that the chiropractor's ads did not constitute protected speech.

Likewise, in Ardt v. Illinois Department of Professional Regulation, 154 Ill. 2d 138, 180 Ill. Dec. 713, 607 N.E.2d 1226 (1992), the Department of Professional Regulation disciplined a dentist on grounds that he violated professional advertising provisions under the Illinois Dental Practice Act prohibiting claims of superior quality care and pain-free treatment. The dentist responded that the provisions contravened his first amendment right to free speech. The dentist's ads represented, in part, that he provided "quality dentistry" and that "total comfort" was available with anesthesia and analgesics. The Ardt court found these terms implied superior quality and a pain-free experience and were, thus, inherently misleading and could be prohibited by the State.

With these principles and examples in mind, we turn to the present case. In cases raising first amendment issues, particularly ones in which it is contended that a communication is unprotected, a reviewing court undertakes an independent examination of the entire record. See Bose Corp. v. Consumers Union of United ...


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