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Snell v. Department of Professional Regulation of the State of Illinois

January 26, 2001

JOSEPH SNELL, D.C., PLAINTIFF-APPELLANT,
v.
THE DEPARTMENT OF PROFESSIONAL REGULATION OF THE STATE OF ILLINOIS; NIKKI M. ZOLLAR, DIRECTOR FOR THE DEPARTMENT OF PROFESSIONAL REGULATION OF THE STATE OF ILLINOIS IN HER OFFICIAL CAPACITY; SHARI DAM, ADMINISTRATIVE LAW JUDGE; AND THE MEDICAL DISCIPLINARY BOARD OF THE DEPARTMENT OF PROFESSIONAL REGULATION OF THE STATE OF ILLINOIS, DEFENDANTS-APPELLEES.



Appeal from Circuit Court of Champaign County No. 98MR7 Honorable John R. DeLaMar, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Steigmann

Plaintiff, Joseph Snell, a licensed chiropractor, appeals from a September 1999 circuit court order affirming sanctions imposed against him by defendants, the Illinois Department of Professional Regulation (Department) and its then-director, Nikki M. Zollar, based on Snell's violation of section 26 of the Medical Practice Act of 1987 (Act) (225 ILCS 60/26 (West Supp. 1999)). Snell argues that (1) the Department's decision was against the manifest weight of the evidence; and (2) section 26, as applied to him, violates his first amendment right to free speech. Because we agree with Snell's second argument, we reverse.

I. BACKGROUND

In December 1996, the Department filed an administrative complaint against Snell, which alleged, inter alia, that Snell violated the advertising provisions set forth in section 26 of the Act (225 ILCS 60/26 (West Supp. 1999)) by displaying in his office waiting room a 27-page booklet entitled "Our Patients Speak" (hereafter booklet). Section 26(2) of the Act provides, in pertinent part, that "[i]t is unlawful for any person licensed under this Act to use testimonials or claims of superior quality of care to entice the public." 225 ILCS 60/26(2) (West Supp. 1999).

At a June 1997 administrative hearing, the evidence showed that the booklet contained preprinted forms entitled "My Chiropractic Story." Each form contained 14 questions addressed to Snell's past or current patients. The questions included the following: (1) "What led to your decision to try chiropractic?" (2) "Did you have any doubts that chiropractic would help you?" (3) "What were your first impressions of chiropractic, this office, and the doctor?" (4) "Is anyone else in your family a chiropractic patient?" (5) "How has chiropractic helped them?" (6) "What would you recommend to others who are sick, suffering, or in pain?" (7) "How do you feel about chiropractic, now that you have enjoyed its benefits?" The answers to the questions were supplied by the patients in their own handwriting, and each form was accompanied by the photograph and signature of the patient.

Following the hearing, the administrative law judge (ALJ) issued her ruling and found that the booklet contained testimonials in violation of section 26 of the Act. Based upon this finding, the ALJ recommended that Snell be reprimanded, pay a $2,500 fine, and complete certain continuing education courses. In September 1997, the Department's medical disciplinary board adopted the ALJ's findings of fact, conclusions of law, and recommendations, and ordered that Snell pay a $2,500 fine.

Snell subsequently sought administrative review of the Department's decision by the circuit court. In September 1999, the circuit court upheld the Department's decision. This appeal followed.

II. FIRST AMENDMENT CHALLENGE

Initially, we note that constitutional questions will not be considered where the case can be determined on other, non-constitutional grounds. See People v. McDaniel 164 Ill. 2d 173, 180, 647 N.E.2d 266, 269 (1995); see also Lacny v. Police Board, 291 Ill. App. 3d 397, 400, 683 N.E.2d 1265, 1267 (1997). However, because it appears that defendants would prevail on the merits of Snell's non-constitutional claim, we address Snell's constitutional argument.

Snell argues that by prohibiting his use of the booklet, section 26 violates his first amendment right to free speech. We agree.

A. Protection of Commercial Speech

Constitutional protection for commercial speech is a relatively recent development in the Supreme Court's first amendment jurisprudence. Prior to the mid-1970s, the Supreme Court adhered to the broad rule that the Constitution imposes no restraint on governments with respect to commercial speech. See Valentine v. Chrestensen, 316 U.S. 52, 54, 86 L. Ed. 1262, 1265, 62 S. Ct. 920, 921 (1942). In 1976, the Court changed course in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 761-62, 48 L. Ed. 2d 346, 358, 96 S. Ct. 1817, 1825-26 (1976), holding that purely commercial speech is entitled to first amendment protection from unwarranted governmental regulation. The Court expressed the belief that the free flow of commercial information is indispensable to the proper allocation of resources in a free enterprise system because it informs the numerous private decisions that drive the system. Virginia State Board of Pharmacy, 425 U.S. at 765, 48 L. Ed. 2d at 360, 96 S. Ct. at 1827.

The Supreme Court has continued to define the appropriate constitutional protection afforded to commercial speech since its holding in Virginia State Board of Pharmacy. See Florida Bar v. Went For It, Inc., 515 U.S. 618, 622-23, 132 L. Ed. 2d 541, 548-49, 115 S. Ct. 2371, 2375 (1995) (listing history and holdings of the Court's commercial speech cases). However, even today, first amendment protection of commercial speech is not absolute. "'"[C]ommercial speech [enjoys] a limited measure of protection, commensurate with its subordinate position in the scale of [f]irst [a]mendment values," and is subject to "modes of regulation that might be impermissible in the realm of noncommercial expression."'" Florida Bar, 515 U.S. at 623, 132 L. Ed. 2d at 549, 115 S. Ct. at 2375, quoting Board of Trustees of State University of New York v. Fox, 492 U.S. 469, 477, 106 L. Ed. 2d 388, 402, 109 S. Ct. 3028, 3033 (1989), quoting Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 456, 56 L. Ed. 2d 444, 453, 98 S. Ct. 1912, 1918 (1978).

B. Central Hudson's Four-Part Test

Restrictions on commercial speech are analyzed under the four-part test set out in Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 566, 65 L. ...


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