Court of Appeals of Illinois, First District, First Division
ROCHELLE J. RODRIGUES, Plaintiff-Appellant,
PATRICK QUINN, Governor of the State of Illinois; LISA MADIGAN, Attorney General of the State of Illinois; THE DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION; BRENT E. ADAMS, Secretary of the Department of Financial and Professional Regulation; JAY STEWART, Director of the Division of Professional Regulation of the Department of Financial and Professional Regulation; THE BOARD OF NURSING; and JULIO SANTIAGO, Chairperson of the Board of Nursing, Defendants-Appellees.
The appellate court upheld the denial of plaintiff’s request for an injunction against enforcement of the provision of the Illinois Department of Professional Regulation Law revoking by operation of law the license of a health care worker who has been convicted of a criminal act requiring registration under the Sex Offender Registration Act, notwithstanding the fact that her license as a registered nurse had been restored by the Department of Financial and Professional Regulation after it had been suspended following her conviction for aggravated criminal sexual assault, since the statute applied to plaintiff is rationally related to the public interest in protecting the public from potentially dangerous health care workers and maintaining the integrity of health care professionals, and it is not arbitrary or discriminatory.
Appeal from the Circuit Court of Cook County, No. 11-CH-30142; the Hon. Franklin U. Valderrama, Judge, presiding.
Broida & Nichele, Ltd., of Naperville (Ronald J. Broida and Joseph K. Nichele, of counsel), for appellant.
Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro, Solicitor General, and Nadine Wichern, Assistant Attorney General, of counsel), for appellees.
Justices Rochford and Delort concurred in the judgment and opinion.
HOFFMAN PRESIDING JUSTICE
¶ 1 At issue in this appeal 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 plaintiff. Subsection (a) of the Act provides that the license of a health care worker as defined in the Health Care Worker 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) is required as a part of a criminal sentence to register under the Sex Offender Registration Act shall by operation of law be permanently revoked without a hearing." 20 ILCS 2105/2105-165(a) (West 2012). The Act became effective on August 20, 2011.
¶ 2 In 1993, the plaintiff, Rochelle J. Rodrigues, was licensed as a registered nurse pursuant to the Nurse Practice Act (now 225 ILCS 65/50-1 et seq. (West 2010)), and she practiced nursing until 2001, when she was convicted of aggravated criminal sexual assault for having a relationship with a 17-year-old neighbor. She was sentenced to five years' imprisonment in 2002 and required to register as a sex offender. As a result of this conviction, the Department of Financial and Professional Regulation (the Department) suspended her nursing license indefinitely and for a period of at least five years. In November 2008, Rodrigues petitioned the Department to restore her nursing license, which it did following an investigation and hearing in 2009. As part of the consent order, Rodrigues was required to retake the National Council Licensure Examination, which she did and passed. She returned to work as a nurse in July 2011.
¶ 3 On August 4, 2011, Rodrigues was notified that her license was being revoked pursuant to the Act. On August 25, 2011, she filed a complaint against the defendants: the Department, Brent E. Adams as Secretary of the Department, Jay Stewart as the Director of the Department's Division of Professional Regulation, the Illinois Board of Nursing (Board), Julio Santiago as the chairperson of the Board, Patrick Quinn as Governor of the State of Illinois, and Lisa Madigan as Attorney General for the State of Illinois. Rodrigues sought a judicial declaration that the Act can be applied only prospectively as the result of convictions that occur after its effective date and injunctive relief preventing the Department from revoking her nursing license as a consequence of her conviction which predated the Act's effective date. On September 7, 2011, Rodrigues filed an emergency petition for a temporary restraining order and preliminary injunction against the defendants after receiving an order from the Department compelling her to notify her employer that she was no longer a licensed registered nurse. On September 8, the circuit court temporarily restrained the defendants from enforcing the Act against Rodrigues until a hearing on her petition for a preliminary injunction could be held. On April 13, 2012, the circuit court denied Rodrigues's petition for a preliminary injunction, finding that she failed to show that she was likely to succeed on the merits of her constitutional claims. Rodrigues timely filed this interlocutory appeal, arguing that the circuit court erred in denying her request for a preliminary injunction.
¶ 4 To be entitled to preliminary injunctive relief, a plaintiff must demonstrate that she (1) possesses a protectable right; (2) will suffer irreparable harm without the protection of an injunction; (3) has no adequate remedy at law; and (4) is likely to be successful on the merits of her action. Travelport, LP v. American Airlines, Inc., 2011 IL App (1st) 111761, ¶ 33. While the plaintiff is not required to make out a case which would entitle her to judgment at trial, she "must establish a 'fair question' as to each of the elements." Id. Generally, we review a trial court's denial of a preliminary injunction using the abuse-of-discretion standard. World Painting Co. v. Costigan, 2012 IL App (4th) 110869, ¶ 12. However, the standard of review is de novo on the issue of whether there is a "fair question" concerning the constitutionality of a statute, which is the issue in this case. Id.
¶ 5 Rodrigues contends that the Act was not intended to apply retroactively. As such, she argues that the retroactive application of the Act is unconstitutional because it: (1) violates the constitutional prohibition against ex post facto laws; (2) violates the constitutional protection against double jeopardy; (3) infringes on her constitutional right to procedural due process; (4) violates her right to substantive due process because it is not rationally related to the government's interest in protecting the public; and (5) violates her constitutional right to equal protection under the law. We rejected similar claims that the Act violated the proscription against ex post facto laws, the constitutional protection against double jeopardy, and the right to procedural due process in Consiglio v. Department of Financial & Professional Regulation, 2013 IL App (1st) 121142. We further determined that the Act was neither retroactive nor punitive in its nature and application. Id. ¶¶ 16, 30. We find no reason in this case to deviate from our previous holding.
¶ 6 In addition to the arguments that we addressed in Consiglio, Rodrigues argues that the Act violates her substantive due process rights in that it is not rationally related to the protection of the public where the Department previously determined that she was not a threat and reissued her license. She argues the Act, even if its goal of protecting the public is legitimate, is not a rational way to achieve the goal. We disagree.
¶ 7 While individuals enjoy certain property rights in the continued practice of their professions and those rights are entitled to due process protection, this fact does not mean that those rights cannot be affected by the state legislature. Gersch v. Department of Professional Regulation, 308 Ill.App.3d 649, 656 (1999). The "right to pursue a profession is not a fundamental right for due process purposes." Id. Where, as here, no fundamental constitutional right is involved, we review the statute using a rational basis analysis. Russell v. Department of Natural Resources, 183 Ill.2d 434, 446 (1998). "Under this test, the statute must bear a reasonable relationship to the public interest intended to be protected, and the means adopted must be a reasonable method of accomplishing the desired objective." Id. at 447. "Whether a [statute] is wise or whether it is the best means to achieve the desired result are matters left to the ...