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Johnson v. Illinois Department of Professional Regulation

November 08, 1999

SUSAN JOHNSON, PLAINTIFF-APPELLANT, V. (NO. 98MR66) THE ILLINOIS DEPARTMENT OF PROFESSIONAL REGULATION AND LEONARD SHERMAN, DIRECTOR, DEFENDANTS-APPELLEES, AND LEA POWELL, PLAINTIFF-APPELLANT, V. (NO. 98MR67) THE ILLINOIS DEPARTMENT OF PROFESSIONAL REGULATION AND LEONARD SHERMAN, DIRECTOR, DEFENDANTS-APPELLEES.


Appeal from Circuit Court of McLean County Nos. 98MR66 98MR67 Honorable Luther H. Dearborn, Judge Presiding.

The opinion of the court was delivered by: Justice Cook

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

8 November 1999

Plaintiffs applied to defendant, Illinois Department of Professional Regulation (Department), for licensing as private detectives. The Department rejected the applications because plaintiffs failed to satisfy statutory qualifications required of private detectives. The circuit court of McLean County affirmed the decision of the Department. Plaintiffs appeal. We reverse and remand.

On January 1, 1998, plaintiff Susan Johnson was employed as a full- time investigator with the Johnson law office. Johnson, who had a baccalaureate degree in psychology, had been employed at the law office for 19 months. She previously had been employed as an investigator with the McLean County public defender's office. Johnson's law office employment included interviewing witnesses, taking statements, preparing witnesses for trial, reviewing police reports, serving subpoenas, summons, and other legal documents, and tracking down witnesses.

On January 1, 1998, plaintiff Lea Powell was employed as a full- time investigator with the McLean County public defender's office. She had previously done work in a private law office. Powell had a baccalaureate degree in criminal Justice and had been employed in the public defender's office for 30 months. Powell's employment with the public defender's office included photographing and surveying crime scenes, taking and verifying statements from witnesses, conducting jail interviews, preparing cases for trial, and serving subpoenas.

Plaintiffs' activities appear to violate the Private Detective, Private Alarm, Private Security, and Locksmith Act of 1993 (1993 Act) (225 ILCS 446/75(a)(6) (West 1996)). A private detective's license is required of anyone who by any means makes investigations, for a fee, of (1) crimes; (2) the identity, conduct, credibility, et cetera, "of any person, firm, association, or corporation"; (3) lost or stolen property; (4) the cause or responsibility for fires, accidents, or injuries; or (5) "[t]he truth or falsity of any statement"; or (6) leading to "[s]ecuring evidence to be used before any court," board, or committee. 225 ILCS 446/5 (West 1996). A private detective's license is also required of anyone who engages in bodyguard functions or serves process in criminal or civil proceedings without court order. 225 ILCS 446/5 (West 1996). The 1993 Act is very broadly written. Every employee who investigates anything in the course of his or her employment, without a private detective's license, arguably violates the Act. The Act is seldom, if ever, enforced, but its constitutionality cannot be sustained on that basis.

Because the 1993 Act is so broad, its constitutionality depends on its many exceptions. Without exceptions to the 1993 Act, attorneys would need a private detective's license to seek out and interview witnesses, bank employees would need a private detective's license to determine the creditworthiness of loan applicants, and insurance adjusters would need to be licensed as private detectives. Statutory exceptions cover these areas (225 ILCS 446/30(2) through (7) (West 1996)) but other problem areas remain. A department store manager who is concerned whether employees are punching each others' time cards, taking home merchandise, or sexually harassing each other may need a private detective's license before making any inquiries. Attorneys may look for and talk to witnesses without a private detective's license (225 ILCS 446/30(2) (West 1996)) but it appears their paralegals may not.

On January 21, 1998, Johnson and Powell each submitted an application to the Department for a private detective's license. In February 1998, Continental Testing Services, Inc. (Continental), the company assigned to administer the private detective test, rejected plaintiffs' applications because plaintiffs failed to satisfy the statutory requirements to become a private detective.

The 1993 Act requires that applicants for a license to be a private detective meet the following requirements: (1) three years' experience during the last five years "working full-time for a licensed private detective agency as a registered private detective employee," or (2) three years' experience during the last five years "employed as a full- time investigator in a law enforcement agency of a federal or State political subdivision, approved by the [Illinois Private Detective, Private Alarm, Private Security and Locksmith] Board [(Board)] and the Department." 225 ILCS 446/75(a)(6) (West 1996). Applicants with a baccalaureate degree in police science or a related field, or a business degree, shall be given credit for two of the three years' required experience. Applicants with associate's degrees in those fields shall be given credit for one of the three years' required experience. 225 ILCS 446/75(a)(6) (West 1996). Continental denied Johnson's application because her education was in an unrelated field and her work experience was inadequate and denied Powell's application because her work experience was inadequate.

Is it really true that criminal defense attorneys must rely on former police officers to seek out and interview defense witnesses? Section 14(a)(7) of the Private Detective, Private Alarm, and Private Security Act of 1983 (1983 Act) (see 225 ILCS 445/14(a)(7) (1992)) allowed an applicant to receive a private detective's license based on three years' experience working as an attorney's investigator. However, section 14(a)(7) was not included when the 1993 Act was adopted.

Plaintiffs appealed Continental's decision to the Board. After a hearing in March 1998, the Board recommended plaintiffs' applications be denied for failure to satisfy the statutory requirements. The Department accepted the Board's recommendation and denied plaintiffs' applications. Plaintiffs then filed a complaint for administrative review in the circuit court of McLean County. In October 1998, the circuit court affirmed the Department's decision. This appeal followed.

The State, pursuant to its inherent police powers, may regulate businesses for the protection of the public health, safety and welfare. The fact that the legislature has invoked its police power to regulate a particular trade, however, is not conclusive that such power was lawfully exercised. Church v. State, 164 Ill. 2d 153, 164-65, 646 N.E.2d 572, 578-79 (1995). A statute that gave master plumbers monopolistic control over the avenues of entry into the plumbing business was held uncon-stitutional in People v. Brown, 407 Ill. 565, 585, 95 N.E.2d 888, 899 (1950). The legislature may reasonably require an applicant to have practical experience, such as an apprenticeship, as a prerequisite to licensure. The supreme court has established a two- part test to determine whether an apprenticeship provision is constitutionally valid: (1) the provision must not have the effect, when implemented, of conferring on members of the trade a monopolistic right to instruct, and (2) it must be structured in such a way that the apprenticeship it requires is calculated to enhance the expertise of prospective licensees. People v. Johnson, 68 Ill. 2d 441, 447, 369 N.E.2d 898, 901 (1977).

Applying this two-part test, the portion of the 1993 Act requiring licensing for private alarm contractors was recently held unconstitutional in Church, 164 Ill. 2d at 167-68, 646 N.E.2d at 580. "No matter how well qualified a person may be by instruction, training[,] or prior experience, he or she can never of his or her own free will become a licensed private alarm contractor unless a member of the regulated industry is willing to hire him or her on a full-time basis for the requisite time period in a particular capacity." Church, 164 Ill. 2d at 168, 646 N.E.2d at 580. The supreme court distinguished People ex rel. Chicago Dental Society v. A.A.A. Dental Laboratories, Inc., 8 Ill. 2d 330, 134 N.E.2d 285 (1956), and Illinois Polygraph Society v. Pellicano, 83 Ill. 2d 130, 414 N.E.2d 458 (1980), as cases where "any person" could obtain a license. Church, 164 Ill. 2d at 168- 70, 646 N.E.2d at 580-81. The private alarm contractor licensing scheme also violated the second ...


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