Court of Appeals of Illinois, First District, First Division
from the Circuit Court of Cook County. No. 15 CH 16766
Honorable Neil H. Cohen, Judge Presiding.
PRESIDING JUSTICE CONNORS delivered the judgment of the
court, with opinion. Justices Harris and Mikva concurred in
the judgment and opinion.
CONNORS PRESIDING JUSTICE.
1 Plaintiff John Doe Three petitioned the Department of
Public Health (Department) to add "chronic
post-operative pain" (CPOP) as a "debilitating
medical condition" under the Compassionate Use of
Medical Cannabis Pilot Program Act (Act) (410 ILCS 130/1
et seq. (West 2014)). The Director of the
Department, Nirav D. Shah, M.D., J.D., denied the petition,
and plaintiff sought judicial review under the Administrative
Review Law (Review Law) (735 ILCS 5/3-101 et seq.
(West 2014)). The circuit court reversed and remanded the
case to the Department for further proceedings. The
Department then asked the circuit court to reconsider its
decision based on the fact that the Illinois General Assembly
had recently amended the Act to reflect new procedures when
attempting to add conditions to the list of debilitating
medical conditions. The Department filed a motion to
reconsider, asking the circuit court to reconsider its order
in light of the new provisions. The circuit court amended its
previous order to outright reverse the Department's
findings, without remand, and directed the Director to add
CPOP to the list of "debilitating medical
conditions" under the Act within 30 days of its order.
The Department and its Director now appeal.
3 The Act, which became law in Illinois effective January 1,
2014, recognizes that using medical cannabis may help treat
or alleviate symptoms associated with "debilitating
medical conditions." See 410 ILCS 130/5(b) (West 2014).
The Act distinguishes between "medical and non- medical
uses of cannabis" and removes state criminal penalties
for the medical use of cannabis if certain conditions are
satisfied. 410 ILCS 130/5(g) (West 2014). At the time
plaintiff petitioned the Department, the Act provided that
any citizen could petition the Department to add debilitating
conditions or treatments to the list of debilitating medical
conditions listed in subsection (h) of section 10 of the Act.
410 ILCS 130/45 (West 2014).
4 The Department promulgated a rule governing such petitions
which provided that an advisory board would then "review
petitions and recommend to the Department additional
debilitating conditions or diseases that would benefit from
the medical use of cannabis." 77 Ill. Adm. Code
5 On March 2, 2015, plaintiff submitted a petition to the
Department seeking to add CPOP as a debilitating medical
condition under the Act. The petition described his suffering
from CPOP as a result of excessive nerve damage from foot
surgery. Plaintiff claimed he was unable to perform routine
daily tasks without suffering debilitating pain in his foot.
Plaintiff also claimed his condition interfered with his
ability to perform in his career which involved hours of
standing and moving. According to plaintiff's petition,
his physicians had attempted to treat his chronic pain with
opiates, anticonvulsant drugs, and antidepressants.
Plaintiff's petition was supported by a statement from
his treating physician, William B. Evans, M.D., that
supported plaintiff's use of medical cannabis to
alleviate the symptoms of CPOP. Plaintiff also submitted
several medical and scientific journal articles supporting
the prescription of cannabis for CPOP.
6 A public hearing was held on the petition, as well as other
petitions seeking to add other medical conditions to the Act.
At the hearing, the Advisory Board members considered
plaintiff's petition and supporting materials, and then
voted. Of the 10 members, 7 voted to approve the petition,
while 3 voted not to.
7 On October 20, 2015, despite the recommendation of the
Advisory Board, the Director denied plaintiff's petition,
finding that "there was not substantial evidence from
adequate, well-controlled clinical trials to support the use
of cannabis in the setting of chronic post-operative pain.
Therefore, the safety and efficacy for this medical condition
cannot be assured." Prior to issuing his decision, the
Director added articles to the record which were not
presented by any of the parties prior to the hearing.
8 Plaintiff then filed a complaint for administrative review,
seeking reversal of the Director's denial of his
petition. The circuit court found that the Director
"clearly violated" the Department's rules
governing the consideration of petitions to add debilitating
conditions to the Act by considering materials outside the
petition. The circuit court noted that under the applicable
administrative rules, the Director was to review the Advisory
Board's recommendations and render a final decision. 77
Ill. Adm. Code 946.30(m) (2014). But instead of reviewing the
Advisory Board's recommendations, the Director conducted
his own investigation and added his own evidence to the
record. The circuit court stated that plaintiff was not given
any opportunity to challenge the additional evidence
considered by the Director, which was a denial of procedural
9 The circuit court also noted that the standard set forth in
the Department's rules for adding a medical condition was
whether the debilitating condition or disease at issue would
benefit from the medical use of cannabis. However, in
rendering his decision, the Director considered whether there
was substantial evidence from adequate, well-controlled
clinical trials to support the use of cannabis for the
treatment of CPOP, which "appears nowhere in the Act or
the Department's rules."
10 The circuit court reversed the Director's decision but
remanded "for the issuance of a new decision by the
Director. The Advisory Board was not unanimous in its
recommendation regarding CPOP. The Director should have the
opportunity to consider the addition of CPOP under the
11 The Department and the Director then filed a motion to
reconsider in light of the Department's emergency rules
that were filed with the Illinois Secretary of State on
August 1, 2016 (40 Ill. Reg. 10992 (emergency rule eff. Aug.
1, 2016)). On June 30, 2016, section 45 of the Act
was amended by Public Act 99-519. See Pub. Act 99-519 (eff.
June 30, 2016). The amendment disbanded the Advisory Board,
but allowed the Governor ...