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05/10/96 MARYANN T. VALDEZ v. NIKKI M. ZOLLAR

May 10, 1996

MARYANN T. VALDEZ, PLAINTIFF-APPELLEE,
v.
NIKKI M. ZOLLAR, DIRECTOR OF PROFESSIONAL REGULATION, AND THE DEPARTMENT OF PROFESSIONAL REGULATION, DEFENDANTS-APPELLANTS. NIDA GAFFUD, PLAINTIFF-APPELLEE, V. NIKKI M. ZOLLAR, DIRECTOR OF PROFESSIONAL REGULATION, AND THE DEPARTMENT OF PROFESSIONAL REGULATION, DEFENDANTS-APPELLANTS.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. No. 93 CH 011557. THE HONORABLE ROBERT D. ERICSSON, JUDGE PRESIDING. APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. No. 93 CH 011059. THE HONORABLE LESTER D. FOREMAN, JUDGE PRESIDING.

The Honorable Justice Cousins delivered the opinion of the court: McNULTY, P.j., and Hourihane, J., concur.

The opinion of the court was delivered by: Cousins

The Honorable Justice COUSINS delivered the opinion of the court:

The plaintiffs in these consolidated appeals, Maryann Valdez and Nida Gaffud, both filed complaints against the defendants, Nikki Zollar and the Department of Professional Regulation, seeking administrative review of the defendants' denial of the plaintiffs' licensure to practice nursing. Both plaintiffs had gained licensure in other states by passing the National Counsel Licensure Examination (NCLEX) in 1993 after failing earlier attempts in the 1980s. When plaintiffs sought Illinois licensure by endorsement, defendants denied licensure based on a January 1, 1990, amendment to the Illinois Nursing Act of 1987 (the Nursing Act) (see 225 ILCS 65/15 (West 1992)), which provided that candidates must pass NCLEX within three years of the first NCLEX exam they attempted. In the trial courts, both plaintiffs were successful and granted licensure because both courts held that the 1990 amendment should apply only prospectively. Defendants have appealed both decisions, and we have consolidated the two appeals.

We affirm.

BACKGROUND

The NCLEX is a nationwide exam given twice yearly in February and July. Gaffud initially attempted to pass the NCLEX in July of 1983, and Valdez initially tried in July 1987. At the time of both exams, the following statute was in force:

"Any person in this State or in any other State or territory of the United States who shall fail any examination a total of 6 times to determine the fitness of such person to receive a license as a registered professional nurse, shall thereafter be ineligible to take any further examination or examinations until such time *** of the recompletion of the entire course of study ***." (Emphasis added.) Ill. Rev. Stat. 1983, ch. 111, par. 3428.2.

Both plaintiffs failed their initial examination attempts. Gaffud also failed the NCLEX exam in February 1984, July 1984, and July 1985. Gaffud then postponed any additional attempts for six years as she suffered five miscarriages from six pregnancies.

In 1987, the Nursing Act was amended as follows:

"Any person in this State or in any other jurisdiction of the United States who fails any examination a total of 6 times within 3 years to determine the fitness of such person to receive a license as a registered professional nurse *** shall thereafter be ineligible to take any further examination or examinations, or be issued a license, until such time *** of the recompletion of the entire course of study ***." (Emphasis added.) Ill. Rev. Stat. 1987, ch. 111, par. 3515 (effective January 1, 1988).

Valdez made another attempt to pass NCLEX in February 1988, but she failed again.

In 1989, the Nursing Act was again amended:

"Any person in this State or in any other jurisdiction of the United States who fails to pass an examination within 3 years to determine the fitness of such person to receive a license as a registered professional nurse *** shall thereafter be ineligible to take any further examination or examinations, or be issued a license, until such time *** of the recompletion of the entire course of ...


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