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Hanke v. Department of Professional Regulation

May 07, 1998

LORNA C. HANKE, PLAINTIFF-APPELLEE,
v.
THE DEPARTMENT OF PROFESSIONAL REGULATION, NIKKI M. ZOLLAR, DIRECTOR, AND THE MEMBERS OF THE COMMITTEE OF NURSE EXAMINERS, DEFENDANTS-APPELLANTS.



No. 95 CH 10037

McNamara, J. South J., concurs, and Wolfson J., specially concurs.

The opinion of the court was delivered by: Justice McNAMARA

APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY

HONORABLE MICHAEL B. GETTY, JUDGE PRESIDING

Defendants Nikki Zollar, Director of the Illinois Department of Professional Regulation; the Illinois Department of Professional Regulation (Department); and the members of the Committee of Nurse Examiners, appeal from an order of the circuit court reversing the Department's decision denying plaintiff Lorna C. Hanke, licensure as a professional registered nurse in Illinois. For the following reasons, we reverse the order of the circuit court. The relevant facts are as follows.

The National Council Licensure Examination (NCLEX) is a standardized nationwide exam given to all applicants who want to practice nursing in the United States. One must pass the exam before becoming licensed as a registered nurse. Hanke first took the NCLEX in Illinois in July 1979 and failed. Hanke took the test for a second time in Illinois in February 1980 and again failed. Before 1990, statutes existed in Illinois that allowed applicants to take the exam six times before being required to recomplete nurses training. In 1990, section 15 of the Illinois Nursing Act of 1987 (225 ILCS 65/15 (West 1994)) was amended to require that an applicant pass the NCLEX within three years.

Hanke next took the exam in Minnesota in February 1994, and in November 1994, and failed both times. Finally, in July 1995, on her fifth attempt, Hanke passed the NCLEX in Minnesota. She received her license as a registered nurse in Minnesota on July 26, 1995. Hanke then applied for an Illinois license as a registered nurse by endorsement based upon her Minnesota license. Illinois allows licensure by endorsement where the requirements of the state of licensure on the date of licensure are substantially equal to the requirements then in force in Illinois. In a letter dated September 19, 1995, the Department denied Hanke licensure by endorsement, stating that the Minnesota statute at the time of Hanke's licensure there was not substantially equal to the licensing requirements in force in Illinois at the time. Furthermore, the letter indicated that Hanke was not eligible for licensure in Illinois because she had not passed the NCLEX within the required three years.

Hanke filed a complaint for administrative review of the Department's final decision on October 18, 1995, naming 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 as defendants. Hanke had summons issue on October 19, 1995, against "Nikki M. Zollar, as Director."

On November 30, 1995, the Department moved to dismiss the complaint on the grounds that Hanke failed to cause summons to issue against the Department or the members of the Committee of Nurse Examiners. The record contains no response to this motion, nor any ruling on it. Summons was never issued against either party.

After a hearing on the matter on February 22, 1995, the circuit court reversed the Department's decision to deny licensure and ordered the Department to issue a registered professional nursing license to Hanke. The defendants appeal.

On appeal defendants contend: (1) that the circuit court erred in failing to grant defendants' motion to dismiss; and (2) that the circuit court erred when it reversed the Department's decision since Hanke failed to satisfy the statutory requirements for licensure either by endorsement or by independently meeting the requirements.

Defendants first contend that the circuit court erred in failing to dismiss this action since Hanke failed to cause summons to issue against and failed to serve the Department and the members of the Committee of Nurse Examiners. Specifically defendants contend that in her complaint for administrative review, Hanke named the Department, the Director of the Department, and the members of the Committee of Nurse Examiners as defendants. However, Hanke only listed the Director as a defendant in the caption and body of the summons that was issued. According to defendants, Hanke never caused summons to issue against the Department or the members of the Committee of Nurse Examiners and, therefore, her action should have been dismissed. We agree. First we note that plaintiff failed to respond to this argument either in her brief or at oral argument.

Where expressly adopted, the Administrative Review Law (735 ILCS 5/3 et seq (West 1994)), is the exclusive method of reviewing the decision of an administrative agency. Straub v. Zollar, 278 Ill. App. 3d 556, 663 N.E.2d 80 (1996); Siciliano v. Illinois Racing Board, 264 Ill. App. 3d 1085, 637 N.E.2d 612 (1994). Section 44 of the Illinois Nursing Act of 1987 (225 ILCS 65/44 (West 1994)) unambiguously provides that all ...


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