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Sonntag v. Stewart

Court of Appeals of Illinois, Second District

December 11, 2015

GLENN L. SONNTAG, Plaintiff-Appellee,
v.
JAY STEWART, as Director of the Division of Professional Regulation of the Department of Financial and Professional Regulation; BRYAN A. SCHNEIDER, as the Department's Secretary; SADZI M. OLIVA, as an Administrative Law Judge for the Department; AMY B. QUINT, as Chair of the Illinois Certified Shorthand Reporters Board of the Department's Division of Professional Regulation; CAROL A. BARTKOWICZ, MELISSA CLAGG, TANA J. HESS, BERNICE E. RADAVICH, WILLIAM A. SUNDERMAN, and BARBARA A. WICHMANN, as Members of the Illinois Certified Shorthand Reporters Board; and THE DIVISION OF PROFESSIONAL REGULATION OF THE DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION, Defendants-Appellants

          Appeal from the Circuit Court of Kane County. Nos. 12-MR-331, 13-MR-886. Honorable David R. Akemann, Judge, Presiding.

         Burke and Birkett, Justices concurred in the judgment and opinion.

          OPINION

         SCHOSTOK, PRESIDING JUSTICE.

          [¶1] The Director of the Division of Professional Regulation of the Illinois Department of Financial and Professional Regulation (Department) appeals from the judgments of the circuit court of Kane County reversing the Department's decisions to revoke and subsequently, on remand, to indefinitely suspend the certified shorthand reporter's license of the plaintiff, Glenn Sonntag. On appeal, the Department contends that its original determination, revoking the plaintiff's license, was not an abuse of discretion. We reverse the trial court's judgment and reinstate the Department's original determination.

         [¶2] BACKGROUND

          [¶3] On September 25, 1978, the plaintiff was licensed to practice shorthand reporting in Illinois. On May 12, 2004, the Attorney General's office executed a search warrant in the plaintiff's office in connection with an investigation into allegations that the plaintiff was in possession of child pornography. On February 7, 2005, the plaintiff was charged with three counts of possession of child pornography (720 ILCS 5/11-20.1(a)(6) (West 2004)). On March 7, 2007, the plaintiff pled guilty to those three counts. He was subsequently sentenced to 24 months' probation and fined $1,185. He was also ordered to undergo counseling and register as a sex offender. In March 2009, he successfully completed his probation and his sentence was discharged. The plaintiff continued to work as a shorthand reporter following his arrest and conviction.

          [¶4] In January 2010, the Department filed an administrative complaint against the plaintiff for his violation of the Illinois Certified Shorthand Reporters Act of 1984 (Reporters Act) (225 ILCS 415/1 et seq. (West 2010)). As subsequently amended, the Department's complaint alleged that, as a result of his conviction and the underlying misconduct, the plaintiff was no longer considered to be of good moral character and thus he satisfied the grounds for disciplinary action under the Reporters Act.

          [¶5] In December 2011, an administrative law judge (ALJ) conducted a hearing on the Department's complaint. The Department presented: (1) the records of the plaintiff's criminal proceedings and the police reports pertaining to the evidence seized under the search warrant; (2) the testimony of the Geneva police officer responsible for executing the search warrant; and (3) the plaintiff's testimony as an adverse witness. The Geneva police officer testified that when the search warrant was executed the plaintiff was very cooperative. The plaintiff immediately admitted the alleged wrongdoing and acknowledged that he had a problem.

          [¶6] In his defense, the plaintiff testified and proposed to present the testimony of 16 character witnesses, but the ALJ limited oral testimony to five witnesses. The plaintiff chose five witnesses with whom he had previously worked, including a judge, an attorney, and fellow court reporters. The remaining witnesses were allowed to testify by affidavit, except the plaintiff's psychologist, whose letter was rejected because he would not be subject to cross-examination.

          [¶7] The plaintiff testified that he had completed every duty required by his sentence and that he considered himself completely rehabilitated. He said that he began counseling as soon as possible after the execution of the search warrant in May 2004 and that he had never viewed child pornography again since that date. He understood that child pornography was wrong and that it harmed children. He realized that he had viewed it because he was depressed and under stress about certain relationship issues. He was certain that he would not engage in such conduct again, because he was in a much better place in his life. He was no longer depressed, and while he continued to see his psychologist for coaching on other issues, it was not necessary to discuss his former interest in child pornography. Furthermore, he believed that it would be his " death" to view child pornography again, because he did not want to " spend 20 years in jail."

          [¶8] The plaintiff's witnesses testified that the plaintiff was a valued and needed member of his profession. They considered his use of child pornography as a temporary lapse or a " mistake" that he had overcome. They all believed that at the time of their testimony the plaintiff was of the appropriate moral character to work as a court reporter.

          [¶9] On January 18, 2012, the ALJ issued her recommendation that the plaintiff's certified shorthand reporter's license be revoked. The ALJ found that the Department had proven its factual allegations by clear and convincing evidence, and that " severe discipline" was necessary to carry out the purposes of the Reporters Act. The ALJ explained that the plaintiff " cannot escape the consequences of his actions under the [Reporters] Act by proposing that he has already served his criminal sentence, that he is currently of good moral character, that his conduct did not affect his practice or that not having a license will cause a tremendous hardship on his income."

          [¶10] On March 30, 2012, the Illinois Certified Shorthand Reporters Board (Board), in its recommendation to the Department, adopted the ALJ's decision in its entirety. The plaintiff subsequently moved for rehearing, which the Department denied. On May 25, 2012, the Department revoked the plaintiff's reporter's license.

          [¶11] On June 29, 2012, the plaintiff filed a complaint for administrative review, and sought a stay of enforcement of the Department's decision. The plaintiff argued that, pursuant to Kafin v. Division of Professional Regulation of the Department of Financial & Professional Regulation, 2012 IL App. (1st) 111875, 972 N.E.2d 1191, 362 Ill.Dec. 158, his discipline was too harsh. In that case, the reviewing court reversed the ...


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