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12/31/97 MARIA R. YAP v. NIKKI M. ZOLLAR

December 31, 1997

MARIA R. YAP, PLAINTIFF-APPELLEE,
v.
NIKKI M. ZOLLAR, AS DIRECTOR OF THE ILLINOIS DEPARTMENT OF PROFESSIONAL REGULATION, ILLINOIS DEPARTMENT OF PROFESSIONAL REGULATION, AND THE MEMBERS OF THE COMMITTEE OF NURSE EXAMINERS, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County. Honorable Edwin M. Berman, Judge Presiding.

The Honorable Justice Burke delivered the opinion of the court. McNAMARA and Cerda, JJ., concur.

The opinion of the court was delivered by: Burke

The Honorable Justice BURKE delivered the opinion of the court:

Defendants Nikki Zollar, Director of the Illinois Department of Professional Regulation, and the Illinois Department of Professional Regulation (Department) appeal from an order of the circuit court reversing the Department's decision denying plaintiff Maria Yap licensure by endorsement as a professional registered nurse. On appeal, defendants argue that: (1) the Department's application of section 15 of the Illinois Nursing Act of 1987 (Act) (225 ILCS 65/15 (West 1993)) did not constitute a prohibited retroactive application of the statute because the Department denied Yap's application based on the Act as it existed in May 1995, and Yap was not deprived of a property or liberty interest because she did not have a vested right to a license; (2) the trial court erred in reversing the Department's decision because Yap failed to satisfy Illinois' statutory requirements for licensure by endorsement based on the fact that the licensing requirements in Minnesota, where Yap first became licensed, "were not substantially equal to the Illinois requirements for licensure then in force"; (3) the change made to section 15 of the Act was merely procedural and not substantive and only clarified existing law; (4) contrary to Yap's argument that she complied with the requirements of a 1990 amendment to section 15 of the Act and that her "time of application" cannot be considered to have started to run prior to the 1990 amendment, there "is simply no basis to ignore the first examination attempt," and the fact that the Department considered that examination does not mean that the Department retroactively applied the 1990 amendment; (5) Yap's application would have been properly denied under the "six times within three years" rule required for passing the exam which was in effect between 1988 and 1990; (6) even if this court finds that the Act cannot be applied retroactively to deny Yap licensure by endorsement in Illinois, pursuant to Valdez v. Zollar, 281 Ill. App. 3d 329, 665 N.E.2d 560, 216 Ill. Dec. 500 (1996), and de la Rosa v. Zollar, 291 Ill. App. 3d 855, 684 N.E.2d 811, 225 Ill. Dec. 820 (1997), all pre-1990 applicants were required to pass the National Council Licensure Examination (NCLEX) by March 1993 and, because Yap did not pass the exam until 1994, her application was properly denied; and (7) the State's statutory interests in the licensing of qualified nurses outweigh whatever inequity Yap may have suffered due to the application of the 1990 amendment to section 15 of the Act. For the reasons set forth below, we affirm.

Yap graduated from nursing school in the Philippines in 1979. In February 1987, Yap first attempted to pass the NCLEX exam in Illinois. The NCLEX is a standardized nationwide exam given to all applicants who want to practice nursing in the United States. Yap took and failed the exam in Minnesota in July 1992, February 1993 and July 1993. Yap took and passed the exam in Minnesota in February 1994, and was issued a license to practice nursing in that state on March 3, 1994. On June 15, 1994, Yap also was issued a license by endorsement in Florida and, on July 19, 1994, she was issued a license by endorsement in Indiana.

In May 1995, Yap applied for licensure by endorsement in Illinois based upon her Minnesota license. On June 15, 1995, the Department sent Yap a letter denying her application for licensure by endorsement to practice nursing in Illinois. The letter stated that, as of the date of Yap's licensure in Florida (June 15, 1994), *fn1 section 15 of the Illinois Nursing Act of 1987 (Act) (225 ILCS 65/15 (West 1993)) required an applicant to pass the NCLEX exam within three years of the applicant's first attempt, and because Yap had not passed the exam within three years of her first attempt (February 1987), she could not be licensed by endorsement in Illinois. The letter also stated that the Act prescribed that the requirements in effect in the state of original licensure at the time of an applicant's licensure had to be substantially equal to the Illinois licensure requirements in effect at that time and, in Yap's case, they were not substantially equal because Minnesota did not impose any time limits for passing the NCLEX. The letter instructed Yap that under section 15 of the Act, she must successfully recomplete an approved registered professional nursing education program and submit a new application and supporting documentation meeting all requirements in effect at the date of application.

On July 11, 1995, Yap filed a complaint for administrative review of the Department's decision denying her licensure by endorsement. In her complaint, Yap alleged that the Illinois licensure requirements in effect at the time she first attempted the NCLEX exam in Illinois in 1987 required an applicant to pass the exam within six attempts over an unlimited period of time. Yap also alleged that the "six-failure" rule was repealed in January 1990, and replaced with a provision which required an applicant to pass the NCLEX within three years of the applicant's first attempt. Yap further alleged that the 1990 provision could not be applied retroactively to her application for licensure by endorsement because to do so would deny her equal protection and due process of law.

In its response to Yap's complaint, the Department stated that it had denied Yap's application for licensure by endorsement because the licensing requirements in her state of original licensure, Minnesota, were not "substantially equal" to those in Illinois as prescribed by the Illinois Act. The Department contended that "Illinois, unlike Florida, *fn2 requires that those who do not pass the licensing examination within three years of the first time they take the examination must complete the entire course of study." The Department argued that Yap did not pass the NCLEX within three years from the date of her first examination in 1987 in Illinois and, because she did not pass the exam until 1994 in Minnesota, she could not be licensed in Illinois by endorsement. The Department further argued that its application of the amended 1990 statute did not constitute improper retroactive application of that statute because the change in the statute was procedural, rather than substantive.

In Yap's reply to the Department's response to her complaint, she argued that the 1990 amendment to section 15 was substantive in nature, and therefore could not be applied retroactively to her. Yap further argued that applying the 1990 amendment to her would deprive her of her constitutional right to pursue her profession.

At the hearing on Yap's complaint on December 6, 1995, the trial court discussed the fact that several cases were pending in this court "dealing" with the same issue as the one presented by Yap. The trial court specifically discussed Banzon v. Zollar, [slip op.], No. 95 CH 2119, in which another circuit court judge ruled that the "same amended provision" of the Act could not be applied retroactively. The trial court in the present case then ruled that the 1990 amendment could not be applied retroactively to Yap, stating:

"In view of what I stated on the record here with regard to the previous ruling by Judge Getty and my feelings that he is correct in that ruling, that this--you cannot grant retroactive capability to a rule in the middle of the game.

And I feel that's what this has done. ***

And there is really no sense in several courts around this division to say the same thing.

I adopt his brief and ruling with regard to this case."

The trial court then entered an order reversing the Department's decision denying Yap's licensure by endorsement. This appeal followed.

The Department first argues that it's application of section 15 of the Act did not constitute a prohibited retroactive application of the statute because it denied Yap's application based on the Act in effect in May 1995, and Yap was not deprived of a property or liberty interest because she did not have a vested right to a license.

Yap contends that the trial court properly reversed the Department's decision because it constituted an unconstitutional retroactive application of section 15 of the Act. Yap argues that when she first took the NCLEX exam in 1987 in Illinois, she reasonably relied on the statute in effect at that time, which required passage of the NCLEX exam within six attempts in an unlimited period of time, and that to now change the requirements to passage within three years ...


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