Court of Appeals of Illinois, First District, Second Division
Appeal from the Circuit Court of Cook County, Illinois No. 12 CH14752 The Honorable Thomas Allen, Judge Presiding.
PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Quinn and Simon concurred in the judgment and opinion.
HARRIS PRESIDING JUSTICE
¶ 1 The Department of Financial and Professional Regulation, Division of Professional Regulation (Department), filed a complaint against Lovejoy Demesa, a licensed registered nurse under the Nurse Practice Act (Act) (225 ILCS 65/60-1 et seq. (West 2010)), in which it sought to have Demesa's license suspended. An administrative law judge (ALJ) found that Demesa was convicted of a felony in violation of section 70-5(b)(3) of the Act (225 ILCS 65/70-5(b)(3)(West 2010)), and failed to report said felony in violation of section 70-5(b)(16) of the Act (225 ILCS 65/70-5(b)(16)(West 2010)). The ALJ recommended Demesa's license be suspended indefinitely for at least one year and that she pay a fine of $500. The Illinois Board of Nursing (Board) agreed with the ALJ's findings of fact, conclusions of law, and the $500 fine, but recommended that Demesa's license be suspended for a definite period of only seven days. The Secretary of the Department agreed with the Board's findings of fact, conclusions of law, and the $500 fine, but ordered that Demesa's license be placed on indefinite suspension for at least one year.
¶ 2 Demesa filed a complaint for administrative review before the circuit court of Cook County, raising numerous issues for the circuit court's review. The circuit court, however, remanded the matter for a hearing de novo before the Department regarding only two of those issues: (1) to allow Demesa to call the Department's prosecuting attorney to testify regarding an informal conference that resulted in a settlement in an earlier related case involving Demesa; and (2) to require the Department to provide discovery to Demesa of disciplinary cases regarding circumstances similar to Demesa's.
¶ 3 The Department petitioned this court for leave to appeal pursuant to Illinois Supreme Court Rule 306(a)(6) (Ill. S.Ct. R. 306(a)(6) (eff. Feb. 26, 2010)), which we allowed. At issue before this court is: (1) whether the ALJ properly denied Demesa's request to call the Department's attorney as a witness at an evidentiary hearing; (2) whether Demesa was entitled to her request that the Department produce all cases within the past five years that had similar factual and procedural backgrounds; and (3) whether the Secretary abused his discretion in suspending Demesa's license. We hold the circuit court abused its discretion when it sent back the matter to the Department for a hearing de novo because Demesa's request that the Department's prosecuting attorney testify is barred under both the advocate-witness rule and the general prohibition against the admission of settlement discussions; and because Demesa forfeited her request to the Department that it produce evidence of similar disciplinary actions it had adjudicated in the preceding five years. We decline to review whether the Secretary's decision to suspend Demesa's license was improper because, even if we did answer the issue, several issues raised by Demesa in her complaint for administrative review would remain undeveloped. Accordingly, we reverse the judgment of the circuit court and remand the matter to the circuit court for proceedings consistent with this decision.
¶ 4 JURISDICTION
¶ 5 On August 15, 2012, the circuit court remanded the matter to the Department for a hearing de novo. On November 16, 2012, the Department petitioned this court for leave to appeal pursuant to Illinois Supreme Court Rule 306(a)(6). Ill. S.Ct. R. 306(a)(6) (eff. Feb. 26, 2010). Illinois Supreme Court Rule 306(a)(6) allows a party to petition this court for leave to appeal "an order of the circuit court which remands the proceeding for a hearing de novo before an administrative agency." Ill. S.Ct. R. 306(a)(6) (eff. Feb. 26, 2010); Trunek v. Industrial Comm'n, 345 Ill.App.3d 126, 128 (2003). This court granted the Department's petition on November 5, 2012. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rule 306(a)(6). Ill. S.Ct. R. 306(a)(6) (eff. Feb. 26, 2010).
¶ 6 BACKGROUND
¶ 7 In October of 2008, the Department filed a three-count complaint against Demesa. At the time of the complaint, DeMesa was "the holder of a Certificate of Registration as a Registered Nurse, License No. 041325058, issued by the Department in 2001." The Department alleged:
"On or about October 9, 2007, [Demesa] pleaded guilty to Criminal Neglect of a Person with a Disability, a Class 3 Felony, before the Circuit Court for the Eighteenth Judicial Circuit, County of DuPage, Illinois, in Case Number 06 CF 3387."
Demesa was sentenced to 24 months' probation "and incarcerated four days in DuPage County Jail, time considered served." The Department stated that, based on the conviction, Demesa's certificate of registration could be revoked or suspended pursuant to section 70-5(b)(3) of the Act. 225 ILCS 65/70-5(b) (3) (West 2010). Count II alleged the same facts as count I, but further alleged that Demesa's conduct violated section 70-5(b)(7) of the Act. 225 ILCS 65/70-5(b)(7) (West 2010). Count III re-alleged the same facts as counts I and II, but added that Demesa "failed to report the plea of guilty to the Department." Accordingly, the Department alleged Demesa violated section 70-5(b)(16) of the Act (225 ILCS 65/70-5(b)(16) (West 2010)).
¶ 8 On April 26, 2010, Demesa filed an answer to the Department's complaint. The Department, on May 10, 2010, sought to strike Demesa's answer for failure to comply with section 1110.120 of title 68 of the Illinois Administrative Code (Code) (68 Ill. Adm. Code 1110.120 (2004)).
¶ 9 On July 2, 2010, Demesa filed a motion to strike and dismiss the Department's complaint arguing that she had already "been brought in front of the [Department] previously for the same conduct underlying the conviction, and had entered a Consent Order allowing for a reprimand on her license." According to Demesa, the Department sought to "discipline her for essentially the same conduct as the Consent Order, " which Demesa explained was "for the allegations of criminal conduct out of which the conviction arose." Demesa further argued the Department was fully aware that there was an ongoing criminal prosecution when she entered into the consent order and that "she made no attempt to hide that fact from" the Department. Demesa characterized the Department's position as "an attempt to discipline her twice, for conduct that if it even violates the Nursing Act, is a minor technical violation. That is, failure to report to [the Department] a conviction in a criminal case of which [the Department] was fully aware."
¶ 10 Demesa attached to her motion an affidavit she prepared, in which she attested, in relevant part, "[o]n November 11, 2006, I participated in a settlement conference with [the Department] regarding allegations that I improperly removed a patient for whom I provided in-home nursing services, from her respirator." Demesa added that "[a]lthough I denied that such conduct was improper, at the settlement conference I agreed to allow the Department to impose a discipline on my professional nurse license" and "[t]hat discipline was a [r]eprimand." Demesa also attested that "[a]t that conference, I informed the Department's attorney Beth Renee Nussbaum, that there was a criminal investigation and complaint pending against me arising out of the same factual allegations." She also attested to another settlement conference, stating that "[e]arlier this year I attended another settlement conference with the Department and attorney Nussbaum and Kelly,  arising out of the allegations in the current [c]omplaint against me" and that "[t]he offer from Nussbaum to settle those charges was that I agree to a 90 day suspension of my professional license."
¶ 11 In response, the Department argued that the consent order, in case number 200600221, is a different case than the current case, case number 200804528. According to the Department, the consent order was approved by the Secretary on April 6, 2007. The complaint in the current case, case number 200804528, "was brought to the Department's Complaint Intake Unit in June 2008 by Liam C. Brennan, the Assistant State's Attorney, in Case Number 06 CG 3387, " and was based on Demesa's failure to report her plea of guilty on October 9, 2007. As of June 2008, the guilty plea had not been reported. The Department asserted that "[a] review of a time chronology reflects that at the time of the November 12, 2006, informal conference [Demesa] had not pleaded guilty to the Felony." The Department also stated that "[i]n other department cases, a Respondent receives a discipline in one case based on conduct that is a violation of the practice act and receives an additional discipline in a second case for a conviction."
¶ 12 On July 2, 2010, Demesa filed a request for discovery. Relevant to this appeal, Demesa asked the Department to provide her the following: "[c]opies of all notes from the files of Beth Renee Nussbaum from case 20084528, including notes taken during the informal conference held on November 12, 2006." In her response to the Department's discovery request, Demesa identified Nussbaum as a potential witness who may be called to testify.
¶ 13 On July 6, 2010, ALJ Sadzi Oliva entered a written order addressing the Department's motion to strike the answer filed May 5, 2010, and Demesa's motion to strike and dismiss the Department's complaint. ALJ Oliva found that Demesa's answer failed to comply with section 1110.120(b) of title 68 of the Code (68 Ill. Adm. Code 1110.120 (West 2004)) and discounted Demesa's contention that the Department sought to discipline her for conduct which she had already been disciplined, finding that Demesa "has not been previously disciplined for a felony conviction or for failure to report." Rather, Demesa "entered into a Consent Order with the Department disciplining her for the conduct underlying the felony conviction." ALJ Oliva found that the felony conviction occurred on October 9, 2007; whereas the consent order was approved by the director on April 6, 2007. Accordingly, ALJ Oliva found that felony conviction and failure to report it occurred after the consent order became effective, and stated that "[t]hese are separate violations of the Nurse Practice Act." ALJ Oliva did find, however, that count II of the Department's complaint was "duplicitous.[sic]" Therefore, ALJ Oliva granted the Department's motion to strike Demesa's answer; denied Demesa's motion to strike and dismiss the Department's complaint as to counts I and III, but granted the motion as to count II of the Department's complaint; and ordered Demesa to file a proper answer.
¶ 14 On July 8, 2010, Demesa filed a second request for discovery. Relevant to this appeal, Demesa asked that the Department produce the following: "For the past five years, identify all cases where a respondent received a discipline in one case based on conduct that violates the practice act, and received a second discipline in a second case for a conviction."
¶ 15 On July 16, 2010, Demesa filed her second answer to the Department's complaint in which she stated that she "admits that as of the date of the filing of the Complaint she had not reported said conviction to [the Department]; but states affirmatively that once [the Department] received notice of the conviction on June 8, 2008, any such obligation for her to make a report of the conviction was mooted."
¶ 16 On August 27, 2010, the Department sought to strike Demesa's discovery request that the Department produce all cases in the past five years where a respondent received discipline in one case based on conduct that violates the Act, and received a second discipline in a second case for a conviction based on the same underlying conduct. The Department argued that Demesa's request was outside the scope of discovery permitted by sections 1110.130(b) and (d). 68 Ill. Adm. Code 1110.130 (b), (d) (West 2004). Alternatively, the Department argued that the request could "be freely deduced from records available for public inspection." Specifically, the Department keeps an index of its formal decisions, which is available to the public during regular business hours. Additionally, the Department sought to strike Demesa's discovery request that the Department produce the notes attorney Nussbaum took during an informal conference on November 12, 2006. The Department argued that the request was outside the scope of discovery permitted by sections 1110.130(b) and (d). 68 Ill. Adm. Code 1110.130 (b), (d) (West 2004). Alternatively, the Department argued that evidence of preliminary negations is irrelevant and prejudicial.
¶ 17 On October 26, 2010, a hearing was held before ALJ Canavan. Initially, ALJ Canavan found that Nussbaum should not be called to testify, stating "I don't think she should be called. I don't think it is proper." Additionally, ALJ Canavan did not allow introduction of evidence of 18 indictments entered against Demesa based on Demesa's argument that they were prejudicial to her.
¶ 18 At the hearing, the Department first called Demesa to testify. Demesa testified that she is a licensed registered nurse, license number 041325058, and admitted that she is subject to the Act and its rules. She admitted that on October 9, 2007, she pled guilty to criminal neglect of a person with a disability, a Class 3 felony, in the circuit court of Du Page County, Illinois. She was found guilty of criminal neglect of a person with a disability and was sentenced to 24 months' probation. When asked on direct examination whether she had notified the Department that she had been convicted of a felony, she answered " I was not aware I needed to." She later clarified that she "was not aware that [she] needed to report." At this point, the Department successfully entered into evidence, without objection, a copy of the criminal sentencing order in case number 06 CF 3387, dated October 9, 2007, which showed that Demesa was found guilty of criminal neglect of a person with a disability. DeMesa further admitted on direct examination that she had to renew her license in 2008. She similarly testified that she was unaware that she had to inform the Department of her conviction when she renewed her license in 2008. The Department then rested.
¶ 19 Demesa testified on her own behalf, stating she was currently "a home health nurse and a hospice nurse." Demesa then successfully entered into evidence, over the Department's objection, the consent order dated April 6, 2007. The consent order, under the heading "stipulations, " provided, in relevant part, that information had "come to the Department that [Demesa], while working as an agency nurse, was sent on assignment to a home health patient, a child, and took an act without a physician's order, which in her belief was in the best interest of the child. The child was not harmed." The consent order stated that this allegation would, if proven, constitute grounds for a suspension or ...