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Angelo Consiglio, M.D v. the Department of Financial and Professional Regulation; Brent E.

April 8, 2013

ANGELO CONSIGLIO, M.D.,
PLAINTIFF-APPELLANT,
v.
THE DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION; BRENT E. ADAMS, SECRETARY OF THE DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION; AND
JAY STEWART, DIRECTOR OF THE DIVISION OF PROFESSIONAL REGULATION OF THE DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION,
DEFENDANTS-APPELLEES.
BRADLEY HIROSHI HAYASHI, D.C.,
PLAINTIFF-APPELLANT,
v.
THE DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION; BRENT E. ADAMS, SECRETARY OF THE DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION; AND
JAY STEWART, DIRECTOR OF THE DIVISION OF PROFESSIONAL REGULATION OF THE DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION,
DEFENDANTS-APPELLEES.
MOHAMMED KALLEELUDDIN, M.D.,
PLAINTIFF-APPELLANT,
v.
THE DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION; AND JAY STEWART, DIRECTOR OF THE DIVISION OF PROFESSIONAL REGULATION OF THE DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION,
DEFENDANTS-APPELLEES.
NERCY JAFARI, M.D.,
PLAINTIFF-APPELLANT,
v.
ILLINOIS DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION; AND JAY STEWART,
DIRECTOR OF THE DIVISION OF THE PROFESSIONAL REGULATION OF THE DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION,
DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 11 CH 29295 The Honorable Franklin Valderrama, Judge Presiding. Appeal from the Circuit Court of Cook County. No. 11 CH 41721 The Honorable Franklin Valderrama, Judge Presiding. Appeal from the Circuit Court of Cook County. No. 11 CH 29367 The Honorable Franklin Valderrama, Judge Presiding. Appeal from the Circuit Court of Cook County. No. 11 CH 28998 The Honorable Franklin Valderrama, Judge Presiding.

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

PRESIDING JUSTICE HOFFMAN delivered the judgment of the court, with opinion. Justices Rochford and Delort concurred in the judgment and opinion.

OPINION

¶ 1 At issue in these consolidated appeals is the constitutionality of section 2105-165 of the Illinois Department of Professional Regulation Law (20 ILCS 2105/2105-165 (West 2012)) (hereinafter referred to as the Act) as applied to the health-care-worker plaintiffs. Subsection (a) of the Act provides that the license of a health care worker as defined in the Health Care Self-Referral Act (225 ILCS 47/1 et seq. (West 2012)) who: "(1) has been convicted of a criminal act that requires registration under the Sex Offender Registration Act; (2) has been convicted of a criminal battery against any patient in the course of patient care or treatment, including any offense based on sexual conduct or sexual penetration; (3) has been convicted of a forcible felony; or (4) who is required as part of a criminal sentence to register under the Sex Offender Registration Act *** shall by operation of law be permanently revoked without hearing." 20 ILCS 2105/2105-165(a) (West 2012). The Act became effective on August 20, 2011. Thereafter, and pursuant to the Act, the licenses issued to the plaintiffs to provide health services in Illinois were permanently revoked by the Department of Financial and Professional Regulation (Department) by reason of their having been previously convicted of batteries against patients.

¶ 2 The facts giving rise to these consolidated appeals are relatively uncomplicated. Each of the plaintiffs was licensed by the Department as a health care worker. Specifically, Angelo Consiglio, M.D., Nercy Jafari, M.D., and Mohammed Kalleeluddin, M.D., were licensed under the Medical Practice Act (225 ILCS 60/1 et seq. (West 2010)) as physicians licensed to practice medicine in all of its branches. Bradley Hiroshi Hayashi, D.C. was licensed under the Medical Practice Act as a chiropractic physician, licensed to treat human ailments without the use of drugs and without operative surgery. Subsequent to being licensed, each of the plaintiffs was convicted of battery or abuse against a patient in the course of care or treatment.

¶ 3 In 2000, Kalleeluddin was convicted of four counts of misdemeanor battery upon female patients. As a consequence of the allegations of misconduct that led to his convictions, the Department suspended Kalleeluddin's license to practice medicine on February 19, 1998.

Kalleeluddin's medical license remained suspended until December 18, 2000, when the Department issued an order restoring it subject to a term of indefinite probation. On November 9, 2007, following an administrative hearing, the Department entered an order terminating Kalleeluddin's probation and restoring his medical license, unencumbered.

¶ 4 In August 2001, Jafari was convicted of misdemeanor criminal sexual abuse for misconduct involving a female patient. He was sentenced to 24-months' probation and was required to register as a sex offender for ten years after the date of his conviction. In 2003, the Department determined that Jafari's medical license did not need to be suspended, revoked, or otherwise limited. In 2010, the Department revisited Jafari's fitness in connection with the operation of his surgical center, and it determined that no action was required. Jafari's duty to register as a sex offender expired four days after the Act took effect.

¶ 5 On January 26, 2005, Consiglio pled guilty to misdemeanor battery upon a female patient in his medical office on January 5, 2004. As a result of his conviction, the Department summarily suspended Consiglio's medical license on February 5, 2005. On May 24, 2005, the Department entered a consent order, under which Consiglio and the Department agreed that his medical license would remain suspended until May 31, 2005, and that thereafter, and until further order, his license would be on an indefinite probation status, subject to certain conditions set forth in the consent order. On August 10, 2006, the Department entered another consent order, finding that Consiglio had fully complied with the terms and conditions of his probation, and restoring his license to practice medicine, unencumbered.

¶ 6 On May 21, 2007, Hayashi was convicted of misdemeanor battery based upon the testimony of a patient that he had touched her inappropriately during the course of treatment. On November 24, 2008, the Department entered a consent order, under which Hayashi and the Department agreed that his license to practice as a chiropractic physician would be suspended for a period of 30 days and thereafter reinstated on a probationary basis for a minimum of three years, subject to the terms and conditions set forth in the order.

¶ 7 Following the revocation of their licenses, the plaintiffs filed separate actions in the circuit court of Cook County, seeking, inter alia, (1) a judicial declaration that the Act can be applied only prospectively as the result of convictions that occur after its effective date; and (2) injunctive relief enjoining the Department from revoking their licenses to provide health services as a consequence of any conviction occurring prior to August 20, 2011, the Act's effective date. The Department and Jay Stewart, the Director of its Division of Professional Regulation, filed motions to dismiss the plaintiffs' actions pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2010)), which the circuit court granted. Thereafter, the plaintiffs each filed timely notices of appeal, and their appeals have been consolidated for purposes of judicial economy.

¶ 8 As the plaintiffs' complaints in these consolidated appeals were dismissed in response to the defendants' motions brought pursuant to section 2-615 of the Code, the only question before this court is whether the dismissed counts state causes of action upon which relief can be granted. Oliveira v. Amoco Oil Co., 201 Ill. 2d 134, 147, 776 N.E.2d 151 (2002). "The legal sufficiency of a complaint alleging that a statute or ordinance is unconstitutional may be raised by way of a section 2-615 motion." DeWoskin v. Loew's Chicago Cinema, 306 Ill. App. 3d 504, 513, 714 N.E.2d 1047 (1999). The issues presented are of law; consequently, our review is de novo, independent of the reasoning of the trial court. T & S Signs, Inc. v. Village of Wadsworth, 261 Ill. App. 3d 1080, 1084, 634 N.E.2d 306 (1994).

¶ 9 In ruling on these appeals, we have taken as true all well-pleaded facts in the complaints as well as all reasonable inferences that may be drawn from those facts, and we have construed all the allegations in the light most favorable to the plaintiffs. Marshall v. Burger King Corp., 222 Ill. 2d 422, 429, 856 N.E.2d 1048 (2006). However, conclusions of law or fact contained within the challenged complaints, unsupported by specific factual allegations, were not taken as true. Ziemba v. Mierzwa, 142 Ill. 2d 42, 47, 566 N.E.2d 1365 (1991).

¶ 10 The plaintiffs have raised a number of arguments in support of their respective appeals. Some of the arguments are common to all of their briefs, whereas some are advanced by fewer than all of the plaintiffs. We will discuss all of the arguments raised without specifying which plaintiff or plaintiffs raised them. The plaintiffs argue that, as applied to them, the Act (1) is retroactive in a manner that offends the constitutional guarantee of substantive due process; (2) infringes on their constitutional rights to procedural due process; (3) violates their constitutional protection against double jeopardy; (4) violates the constitutional prohibition against ex post facto laws; (5) offends separation of powers principles by abridging the Department's discretionary authority and the judiciary's power of review; (6) impairs the obligations of contracts between the Department and the plaintiffs, in violation of the contracts clause of the Illinois Constitution; (7) imposes an excessive penalty in violation of the proportionate penalties clause of the Illinois Constitution; (8) cannot be enforced, because the Department's prior disciplinary decisions create a res judicata bar to new discipline; and (9) unfairly deprives them of vested limitations and repose defenses. For the reasons that follow, we reject all of these arguments.

¶ 11 The plaintiffs first argue that the plain language of the Act does not reflect an intent that it apply to health care workers convicted of a triggering event prior to its enactment. Further, even if the legislature so intended, the plaintiffs argue that the due process clauses of the federal and state constitutions bar such retroactive changes in the law. U.S. Const., amend. XIV; Ill. Const. 1970, art. 1, § 2; Lazenby v. Mark's Construction Co., 236 Ill. 2d 83, 98, 923 N.E.2d 735 (2010). We disagree on both points.

¶ 12 Our first task is to determine whether the legislature intended that the Act apply to triggering events occurring before its effective date. In construing a statute, our goal is to ascertain and give effect to the legislature's intent. Chicago Teachers Union, Local No. 1 v. Board of Education of City of Chicago, 2012 IL 112566, ¶ 15, 963 N.E.2d 918. The most reliable way to ascertain the legislative intent is to examine the language of the statute, giving its words their plain and ordinary meaning. Id.

¶ 13 The Act provides that, when a licensed health care worker "has been convicted" of one triggering offense, his or her license "shall by operation of law be permanently revoked without a hearing." Although the plaintiffs argue that the Act contains no express statement that it applies to individuals who have been convicted of a triggering event prior to its enactment, their argument is belied by the clear and unambiguous language of the Act. The phrase "has been" is in the present perfect tense, which is used to refer to a past event that has present consequences. See In re Gwynne P., 215 Ill. 2d 340, 357-58, 830 N.E.2d 508 (2005) (the language " 'has prevented' is in the present perfect tense, a verb form used to denote action beginning in the past and continuing to the present").

Thus, the Act clearly applies to the plaintiffs' convictions, even though those convictions predate the Act.

¶ 14 The next question to be resolved is whether the Act operates retroactively in a way that violates their rights to substantive due process. To determine whether a statute operates retroactively for purposes of substantive due process, our supreme court has adopted the analysis set forth in Landgraf v. USI Film Products, 511 U.S. 244 (1994). Commonwealth Edison Co. v. Will County Collector, 196 Ill. 2d 27, 39, 749 N.E.2d 964 (2001). Under Landgraf, if the legislature has clearly indicated the temporal reach of a statute, then, absent a constitutional prohibition, that expression of legislative intent must be given effect. Id. at 38. When the legislature has not indicated the temporal reach, then the court must determine whether applying the statute would have a retroactive impact; meaning, " 'whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed.' " Id. (quoting Landgraf, 511 U.S. at 280). "If there would be no retroactive impact, as that term is defined by the court, then the amended law may be applied." Id. If the amendment has a retroactive impact, then the court must presume that the legislature did not intend that it be so applied. Id.

¶ 15 In their arguments, the plaintiffs somewhat conflate the issues of whether the Act applies to convictions that predate its enactment and whether the Act operates retroactively. The fact that application of the Act's mandatory revocation provisions may depend upon criminal acts which predate its effective date does not necessarily render it retroactive in nature. Landgraf, 511 U.S. at 269-70; Cox v. Hart, 260 U.S. 427, 435 (1922).

¶ 16 Indeed, although the Act may draw upon antecedent convictions for its operation, it does not impose new legal consequences to the plaintiffs' convictions or their right to practice medicine in the years after their convictions and prior to its effective date. "Rather, the statute looks prospectively at [their] right to continue practicing medicine in the future." Bhalerao v. Department of Financial & Professional Regulation, 834 F.Supp. 2d 775, 783 (N.D.Ill. 2011). As the court held in Bhalerao, the Act creates a present and future effect on present and future conduct, and has no effect on the plaintiffs' rights to practice medicine in the past. Id. at 783-84; see also Wineblad v. Department of Registration & Education, 161 Ill. App. 3d 827, 830, 515 N.E.2d 705 (1987) (finding the State may change the requirements for the issuance or retention of a professional license so long as the requirement bears some reasonable relationship to the legitimate interest of public health and safety); U.S. v. Leach, 639 F.3d 769, 773 (2011) (finding new Sex Offender Registry and Notification Act was not retroactive merely because it applied to convictions that predated its enactment; rather, the law created "new, prospective legal obligations based on the person's prior history"). In sum, the Act affects only the plaintiffs' rights to practice as health care workers subsequent to its enactment, and it is not retroactive in a manner that triggers the substantive due process protections described in Landgraf.*fn1

¶ 17 Next, the plaintiffs argue that the Act may not be given effect where doing so violates their procedural due process rights. Procedural due process delineates the procedures that must be followed before depriving a person of life, liberty, or property. Fischetti v. Village of Schaumburg, 2012 IL App (1st) 111008, ¶ 15, 967 N.E.2d 950. The plaintiffs argue that, because the Act requires revocation of ...


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