APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE ELLIS REID, JUDGE PRESIDING.
Released for Publication December 5, 1997.
The Honorable Justice McNAMARA delivered the opinion of the court. Cerda and Burke, JJ., concur.
The opinion of the court was delivered by: Mcnamara
The Honorable Justice McNAMARA delivered the opinion of the court:
Defendants, the State of Illinois and the Department of Professional Regulation (hereinafter together referred to as "the Department"), appeal from an order of the circuit court of Cook County awarding attorney fees in the amount of $58,881 to plaintiff, Edward Ardt, under section 10-55(c) of the Illinois Administrative Procedure Act (5 ILCS 100/10-55(c) (West 1992)). The Department argues that the trial court erred in awarding plaintiff all of the attorney fees he requested because the Administrative Procedure Act allows fees to be awarded only in limited circumstances. Specifically, the Department argues that a portion of the attorney fees plaintiff was awarded did not relate to the invalidation of any administrative rules. The Department also argues that the fee award was not reasonable as required under section 10-55(c).
Section 10-55(c) provides:
"(c) In any case in which a party has any administrative rule invalidated by a court for any reason, including but not limited to the agency's exceeding its statutory authority or the agency's failure to follow statutory procedures in the adoption of the rule, the court shall award the party bringing the action the reasonable expenses of the litigation, including reasonable attorney's fees." 5 ILCS 100/10-55(c) (West 1992).
Plaintiff filed his petition seeking attorney fees under section 10-55(c) following the Illinois Supreme Court's issuance of Ardt v. Department of Professional Regulation, 154 Ill. 2d 138, 607 N.E.2d 1226, 180 Ill. Dec. 713 (1992), aff'g 218 Ill. App. 3d 61, 578 N.E.2d 128, 161 Ill. Dec. 1 (1991). The facts and issues involved in the administrative action brought by the Department against plaintiff are stated in detail in these prior decisions. They will be restated here only to the extent necessary to resolve the Department's contentions concerning the trial court's award of fees to plaintiff.
In 1989, the Department filed a complaint against plaintiff, a practicing dentist, alleging that he had violated provisions of the Illinois Dental Practice Act (Ill. Rev. Stat. 1987, ch. 111, par. 2301 et seq.) (now 225 ILCS 25/1 et seq. (West 1992)). Following an administrative hearing, plaintiff was found to have violated sections 23 and 45 of the Dental Practice Act and certain administrative regulations promulgated thereunder by using the terms "family dentistry," "total comfort," and "quality" in his advertising. The Department fined plaintiff $500 and placed him on probation for two years. During that time, plaintiff was to submit copies of all of his advertisements to the Department and to publicly display his license, which was stamped to indicate that he was on probation.
Plaintiff sought administrative review of the Department's decision. Among other things, plaintiff challenged the validity of the advertising provisions under which he was charged, claiming that the provisions violated his first amendment right to free speech. Plaintiff also filed a petition for a stay of the Department's sanctions pending review. The circuit court granted the stay, despite the Department's argument that, under section 32 of the Dental Practice Act (Ill. Rev. Stat. 1987, ch. 111, par. 2332), "all sanctions *** shall remain in full force and effect" during the pendency of judicial review. The circuit court did not find section 32 unconstitutional, but held that it should apply only where a dentist's professional competence is in question. The court found that, in plaintiff's circumstances, there was no potential harm to the public, and plaintiff's practice would suffer if he were forced to display his probationary license during the period of judicial review.
The Department filed an interlocutory appeal seeking reversal of the stay order. That appeal was later consolidated with plaintiff's appeal from the trial court's decision affirming the Department's determination on the merits. In Ardt v. Department of Professional Regulation, 218 Ill. App. 3d 61, 578 N.E.2d 128, 161 Ill. Dec. 1 (1991), this court found that the circuit court had the authority to grant the stay order. Specifically, we held that because it improperly restricted the equitable power of the court to issue a stay where appropriate, section 32 improperly infringed on the power of the judiciary and was unconstitutional. Ardt, 218 Ill. App. 3d at 65, 578 N.E.2d at 132. This court also held that section 421 of the Department's regulations (68 Ill. Adm. Code § 1220.421 (1988 Supp.)) was an unconstitutional abridgement of plaintiff's freedom of speech to the extent that it categorically barred use of the term "family dentistry," and that a later version of section 421 could not be applied retroactively to plaintiff. Ardt, 218 Ill. App. 3d at 67-68, 578 N.E.2d at 132. It was also determined that the Department's outright prohibition of the terms "quality dentistry" and "total comfort" in advertising was not unconstitutional. Ardt, 218 Ill. App. 3d at 68, 578 N.E.2d at 132. Finally, this court rejected plaintiff's arguments that he was denied procedural due process and equal protection of the law. Ardt, 218 Ill. App. 3d at 69-70, 578 N.E.2d at 132-33.
The Illinois Supreme Court affirmed the decision of this court. Ardt v. Department of Professional Regulation, 154 Ill. 2d 138, 607 N.E.2d 1226, 180 Ill. Dec. 713 (1992). Like this court, the supreme court concluded that section 32 of the Dental Practice Act was unconstitutional in that it improperly restricted the inherent power of the court to issue a stay where appropriate. Ardt, 154 Ill. 2d at 151, 607 N.E.2d at 1232. Moreover, though it noted that "the Department does not contest the appellate court's conclusion," the court expressed its agreement that section 421's total ban on the term "family dentistry" was unconstitutional and that a 1989 version of that regulation could not be given retroactive effect. Ardt, 154 Ill. 2d at 152-53, 607 N.E.2d at 1233. Finally, the court affirmed the determination that the Department's ban of the terms "quality dentistry" and "total comfort" in advertising was not an unconstitutional violation of plaintiff's right to free commercial speech. Ardt, 154 Ill. 2d at 155, 607 N.E.2d at 1233-35.
Following the issuance of the supreme court's opinion, plaintiff filed in the Illinois Court of Claims a petition seeking attorney fees under section 10-55(c) of the Administrative Procedure Act (5 ILCS 100/10-55(c) (West 1992)). The Court of Claims dismissed the petition for lack of jurisdiction. Plaintiff refiled his petition in the circuit court of Cook County. Plaintiff alleged that under section 10-55(c), he was entitled to his litigation expenses and attorney fees for his defense and prosecution of appeals to the circuit court, appellate court, and the supreme court. Plaintiff attached as an exhibit to his petition an itemized billing statement. On May 20, 1996, the trial court awarded plaintiff $58,881, the full amount of fees requested in his petition. The Department appeals.
The Department contends that plaintiff was not entitled to all of the attorney fees he incurred, but only those "which related to the invalidation of an administrative rule, and which were not unreasonable." The Department contends that the only administrative rule invalidated during the extensive litigation between the Department and plaintiff was section 421 of title 68 of the Illinois Administrative Code (68 Ill. Adm. Code § 1220.421 (1988 Supp.)), and that plaintiff is entitled to only those fees expended on that issue in the appellate court where section 421 was found unconstitutional. According to the Department, plaintiff is not entitled to any fees incurred in the circuit court, where the Department's sanctions were upheld. Nor is plaintiff entitled to any fees incurred at the supreme court level, the Department contends, because the Department did not challenge before the supreme court the appellate court's findings concerning section 421. The Department also argues that plaintiff is not entitled to any fees relating to the Illinois Supreme Court's determination that section 32 of the Dental Practice Act was unconstitutional. According to the Department, section 10-55(c) does not allow for fees incurred in successfully invalidating a statutory enactment. The Department also asserts that where plaintiff was unsuccessful in challenging the Department's ban on the terms "quality dentistry" ...