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Shushunov v. Illinois Department of Financial and Professional Regulation

Court of Appeals of Illinois, First District, Fifth Division

February 24, 2017

SERGEI SHUSHUNOV, M.D., Plaintiff-Appellant,
THE ILLINOIS DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION, and JAY STEWART, in His Official Capacity as Director of the Division of Professional Regulation for the Illinois Department of Financial and Professional Regulation, Defendants-Appellees.

         Appeal from the Circuit Court of Cook County, No. 13-CH-8189; the Hon. Rita Novak, Judge, presiding.

          Stein Law Offices, of Des Plaines (Alon Stein, of counsel), for appellant.

          Lisa Madigan, Attorney General, of Chicago (Carolyn E. Shapiro, Solicitor General, and Paul Racette, Assistant Attorney General, of counsel), for appellees.

          Panel JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Justices Hall and Reyes concurred in the judgment and opinion.



         ¶ 1 Plaintiff, Sergei Shushunov, M.D., appeals the circuit court's order dismissing his action for declaratory and injunctive relief against defendants, the Illinois Department of Financial and Professional Regulation (Department) and Jay Stewart, the director of the Department's division of professional regulation, in which he sought relief following the revocation of his medical license due to a forcible felony conviction. Plaintiff contends that section 2105-165(a)(3) of the Civil Administrative Code of Illinois (20 ILCS 2105/2105-165(a)(3) (West 2012)), also known as the Illinois Department of Professional Regulation Law (Act), is unconstitutional on its face and as applied both procedurally and substantively. Plaintiff additionally contends that the regulation defining "forcible felony" (68 Ill. Adm. Code 1130.120, adopted at 37 Ill. Reg. 1192 (eff. Feb. 1, 2013)) (Regulation) was applied retroactively and exceeds the scope of the Act. Finally, plaintiff contends the Act and/or the Regulation violate ex post facto laws, constitute double jeopardy, constitute an irrebutable presumption, and violate the bill of attainder.

         ¶ 2 Section 2105-165(a) of the Act mandates the permanent revocation, without a hearing, of the license of a healthcare worker who has been convicted of certain criminal offenses, including a criminal act that requires registration under the Sex Offender Registration Act; a criminal battery against any patient in the course of patient care or treatment, including any offense based on sexual conduct or sexual penetration; a forcible felony; and a criminal sentence that requires registration under the Sex Offender Registration Act. 730 ILCS 150/1 et seq. (West 2012).

         ¶ 3 Based on the following, we affirm.

         ¶ 4 FACTS

         ¶ 5 On September 27, 2012, plaintiff pled guilty to attempted armed robbery (720 ILCS 5/8-4, 18-2(a)(2) (West 2010)) and aggravated battery (720 ILCS 5/12-4 (West 2010)) in connection with an incident involving his wife's boyfriend. At the time of the incident, plaintiff was a physician licensed in Illinois. Plaintiff and his wife were in the process of divorce. In relevant part, in May 2011, plaintiff entered his wife's boyfriend's home, specifically, his bedroom, where plaintiff found the man speaking to plaintiff's wife on the phone. Plaintiff, who was armed with a handgun and was wearing black leather gloves at the time, shouted, "My name is Sergei. Leave my wife alone!" Plaintiff then punched the boyfriend multiple times in the face while pointing the handgun at his abdomen. Plaintiff instructed the boyfriend to remove the SIM card from his phone. In response, the boyfriend threw his phone on the bed and never saw it again. The boyfriend's two daughters, ages 10 and 14, were also in the home at the time of the incident. Plaintiff was sentenced to two years of probation with the first six months spent in Cook County jail.

         ¶ 6 In March 2013, defendants sent plaintiff a notice of intent to permanently revoke plaintiff's medical license pursuant to section 2105-165(a)(3) of the Act based on his forcible felony conviction.

         ¶ 7 On March 26, 2013, plaintiff filed a complaint and a motion for a temporary restraining order (TRO) requesting to enjoin defendant from summarily revoking his license without a hearing. Plaintiff argued, inter alia, that the automatic revocation statute was overbroad, over-inclusive, and unconstitutional where it deprived him of having an administrative law judge (ALJ) consider the facts and circumstances surrounding his guilty plea, and that the automatic revocation provision of section 2105-165(a)(3) of the Act did not apply to him because the Regulation defining "forcible felony" (68 Ill. Adm. Code 1130.120, adopted at 37 Ill. Reg. 1192 (eff. Feb. 1, 2013)) was not in effect at the time of his guilty plea.

         ¶ 8 On March 28, 2013, the circuit court held a hearing on the TRO request. During the hearing, the circuit court, in part, stated the following:

"[t]his case, unlike the other trial court decisions [applying and analyzing the statute at issue][, ] is not patient related conduct, but conduct that is entirely not patient related. *** the statute is potentially over inclusive in terms of what the legislature was trying to accomplish. *** it undermines the Department's arguments about the need to protect patients that the Department would wait nearly six months to issue this Notice."

         Ultimately, the circuit court granted plaintiff's requested TRO, finding he was likely to succeed on the merits of his constitutional claims. The court additionally granted plaintiff leave to file an amended complaint. On April 3, 2013, the court entered a written order memorializing its findings. In the written order, the court expressly stated that plaintiff "demonstrated various fair questions" as to the application of section 2105-165(a) of the Act and the Regulation in terms of whether the automatic revocation provision for forcible felonies under the Act and as defined by the Regulation was overbroad and whether, under the facts of the case, the automatic revocation of plaintiff's medical license without a hearing was unconstitutional as applied.

         ¶ 9 On April 18, 2013, plaintiff filed his first amended complaint. In response, defendants filed a motion for judgment on the pleadings or, in the alternative, a motion to dismiss pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2010)). As a basis for support, defendants cited Consiglio v. Illinois Department of Financial & Professional Regulation, 2013 IL App (1st) 121142, which recently rejected similar constitutional challenges to section 2105-165(a) of the Act. Plaintiff replied that Consiglio was inapposite because his conviction was not based on patient or sex-related offenses. Ultimately, the circuit court stayed the matter until the Illinois Supreme Court reached its own decision in Consiglio.[1]

         ¶ 10 On January 2, 2014, defendants filed a motion requesting that the circuit court either vacate the stay or, in the alternative, the temporary restraining order, citing Rodrigues v. Quinn, 2013 IL App (1st) 121196, for support. The circuit court denied defendants' motion, leaving both the stay and TRO in place. Then, when the supreme court issued Hayashi, which affirmed Consiglio, the circuit court granted plaintiff leave to file a second amended complaint.

         ¶ 11 On December 22, 2014, plaintiff filed his second amended complaint, the subject of which underlies this appeal. In the second amended complaint, plaintiff sought a declaratory judgment that (1) section 2105-165(a)(3) is unconstitutional on its face and overbroad because there are no set of circumstances under which the automatic revocation provision would be valid for individuals convicted of forcible felonies; (2) section 2105-165(a)(3) is overbroad, over-inclusive, and unconstitutional as applied to him where it prohibits his ability to seek an agreement with defendant to never practice medicine in Illinois and where the statute has no rational relationship to a legitimate purpose; (3) application of the Regulation defining "forcible felony" violated ex post facto laws where it was improperly retroactively applied; (4) the retroactive application of the Regulation violates the statute on statutes; (5) the retroactive application of the Regulation constitutes double jeopardy, as it was not in effect when he pled guilty; (6) section 2105-165(a) and the Regulation constitute an impermissible bill of attainder; and (7) section 2105-165(a) and the Regulation create an improper, irrebuttable presumption. Defendants responded by filing a section 2-615 motion to dismiss plaintiff's second amended complaint.

         ¶ 12 Prior to the hearing on defendants' motion to dismiss, plaintiff filed a motion to stay the proceedings or to continue the hearing date pending the disposition of a proposed amendment to section 2105-165 of the Act. The motion was denied.

         ¶ 13 Following oral arguments, on June 15, 2015, the circuit court dissolved the April 3, 2013, temporary restraining order and dismissed plaintiff's complaint with prejudice. In so doing, the circuit court found section 2105-165(a) was not unconstitutional on its face or as applied to plaintiff, under either procedural or substantive due process principles. The circuit court also dismissed plaintiff's retroactivity challenge to the Regulation, as well as his remaining claims. In addition, the ...

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