Morr-Fitz, Inc. v. Blagojevich ( 2008 )

Docket No. 104692.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
MORR-FITZ, INC., et al., Appellants, v. ROD R. BLAGOJEVICH,
Governor, State of Illinois, et al., Appellees.
Opinion filed December 18, 2008.
JUSTICE THOMAS delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Kilbride, Garman, and
Karmeier concurred in the judgment and opinion.
Justice Freeman dissented, with opinion, joined by Justice Burke.
OPINION
Plaintiffs–two licensed pharmacists and three corporations that
own and operate pharmacies in Illinois–brought a declaratory
judgment action in the circuit court of Sangamon County against
various Illinois public officials and the State Board of Pharmacy,
seeking to invalidate an administrative rule that forces pharmacies to
dispense Plan B contraception (also known as the morning-after pill
or emergency contraception). The rule provided that a pharmacy must
dispense the contraceptive without delay upon receipt of a valid
prescription. If the item is not in stock, the pharmacy must order it if
the patient requests that it do so. 68 Ill. Adm. Code §1330.91(j)
(2005). The plaintiffs’ nine-count amended complaint alleged, inter
alia, violations of the Illinois Health Care Right of Conscience Act
(Conscience Act or Act) (745 ILCS 70/1 et seq. (West 2004)) and the
Illinois Religious Freedom Restoration Act (Religious Freedom Act)
(775 ILCS 35/1 et seq. (West 2004)), as well a claim that the rule was
unconstitutional on its face and as applied because it violated the first
amendment of the United States Constitution. Plaintiffs alleged that
the rule contravenes their moral and religious beliefs because they
believe that life begins at conception and that Plan B can act as an
abortifacient.
The circuit court dismissed the complaint with prejudice on
grounds of standing, ripeness, and failure to exhaust administrative
remedies. A divided appellate court affirmed. 371 Ill. App. 3d 1175.
We granted plaintiffs’ petition for leave to appeal. 210 Ill. 2d R. 315.
For the reasons set forth below, we reverse the judgment of the
appellate court.
BACKGROUND
According to the amended complaint, plaintiffs Luke Vander
Bleek and Glen Kosirog are licensed pharmacists who own and
control a number of Division I pharmacies. A Division I pharmacy is
a pharmacy that engages in “general community pharmacy practice
and that is open to, or offers pharmacy services to, the general
public.” 68 Ill. Adm. Code §1330.5 (2005). Vander Bleek resides in
Morrison, Illinois, and is owner of the Fitzgerald pharmacy and the
sole shareholder of Morr-Fitz, Inc., the corporation that controls the
Fitzgerald pharmacy. The Fitzgerald pharmacy has two locations, one
in Prophetstown, Illinois, and the other in Morrison. Additionally,
Vander Bleek is the majority shareholder of L. Doyle, Inc., which
does business as the Eggleston Pharmacy, with locations in
Sycamore, Illinois, and Genoa, Illinois. Vander Bleek is the chief
pharmacist at his Morrison location.
The amended complaint further alleges that Vander Bleek is the
third of 12 children and a lifelong Catholic. He graduated from the
University of Illinois in 1986 with a bachelor of science degree in
pharmacy, concentrated in medical chemistry and drug design. He has
formed a professional opinion “about teratogenic or abortifacient
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drugs and their destruction of what he considers is human life,” and
he believes that Plan B has an “abortifacient mechanism of action.”
Through prayerful reflection and consideration as a practicing
Catholic, he has informed his beliefs and conscience on which he
relies to hold that life begins at conception. He therefore does not
believe that his convictions allow him to dispense Plan B. He also
does not believe that the pharmacies he controls can cooperate in the
sale or dispensing of drugs like Plan B and therefore conscientiously
objects on behalf of his corporation. Over the past several years, he
has affirmed his company policy of not dispensing drugs with
abortifacient qualities when his pharmacies were presented with
prescriptions for such drugs. Specifically, his company’s written
policy is that in the event that a prescription for emergency
contraception is presented, the pharmacist on duty is to immediately
return the prescription to the patient. He is then to communicate in a
confidential environment, without lecturing about morality, that
company policy does not allow the pharmacy to procure, stock or
dispense the product.
According to the amended complaint, plaintiff Kosirog resides
in Wheaton, Illinois, and is the sole shareholder of Kosirog Pharmacy,
Inc., which does business as Kosirog Rexall Pharmacy in Cook
County. Kosirog is a lifelong Christian and has five children, one
with Down’s Syndrome. He graduated from the University of
Wyoming in 1982, earning a bachelor of science degree in pharmacy.
He has formed a professional opinion “about teratogenic or
abortifacient drugs and their destruction of what he considers is
human life.” He believes that Plan B has an “abortifacient mechanism
of action, i.e., [it] can cause abortions by preventing an already
fertilized egg from implanting in the womb.”1 Based on Kosirog’s
conscience and belief, his pharmacy forbids the sale or dispensing of
drugs suspected to have teratogenic or abortifacient qualities, such as
Plan B. In specific instances over the past few years when presented
1
This is consistent with the United States Food and Drug
Administrations official website statement about Plan B, which
acknowledges that “[if] fertilization does occur, Plan B may prevent a
f e r t i l i z e d egg fr o m a t t a c h i n g t o t h e w o m b .”
http://www.fda.gov/CDER/drug/infopage/planBQandA.htm.
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with prescriptions for such drugs, Kosirog, on behalf of his pharmacy,
has affirmed the aforementioned policy not to dispense such drugs.
On April 1, 2005, the Governor filed an “Emergency Rule” that
amended section 1330.91 of title 68 of the Illinois Administrative
Code. The emergency amendment became permanent in the form of
an administrative rule (hereinafter “the rule” or “subsection (j)”) on
August 25, 2005, and states in relevant part as follows:
“j) Duty of Division I Pharmacy to Dispense
Contraceptives
1) Upon receipt of a valid, lawful prescription for a
contraceptive, a pharmacy must dispense the
contraceptive *** to the patient or the patient’s agent
without delay, consistent with the normal timeframe for
filling any other prescription. If the contraceptive *** is
not in stock, the pharmacy must obtain the contraceptive
under the pharmacy’s standard procedures for ordering
contraceptive drugs not in stock, including the procedures
of any entity that is affiliated with, owns, or franchises the
pharmacy. However, if the patient prefers, the prescription
must be transferred to a local pharmacy of the patient’s
choice under the pharmacy’s standard procedures for
transferring prescriptions for contraceptive drugs,
including the procedures of any entity that is affiliated
with, owns, or franchises the pharmacy. Under any
circumstances an unfilled prescription for contraceptive
drugs must be returned to the patient if the patient so
directs.
2) For purposes of this subsection (j), the term
‘contraceptive’ shall refer to all FDA-approved drugs or
devices that prevent pregnancy.” 68 Ill. Adm. Code
§§1330.91(j)(1), (j)(2) (2005).
Plan B and the morning-after pill fall within the above-quoted
rule’s definition of contraceptives. On October, 28, 2005, plaintiffs
filed their first amended complaint seeking a declaration that the rule
is invalid. Plaintiffs also sought an injunction against the rule’s
enforcement. Named defendants in the suit included Rod Blagojevich,
the Governor of the State of Illinois, Fernando Grillo, then the
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secretary of the Illinois Department of Financial and Professional
Regulation (Department), Daniel Bluthhardt, then the acting director
of the Department’s Division of Professional Regulation (Division),
and the State Board of Pharmacy.2
With respect to the language of the rule, plaintiffs’ amended
complaint states that by “demanding that Division I Pharmacies fill
any prescription for ‘contraceptives,’ including the ‘morning-after
pill’ and ‘Plan B,’ [the rule] requires the Plaintiffs to act against the
collective conscience of their corporate control group and against the
policies of their pharmacies.” Plaintiffs allege that both the
emergency rule and the permanent rule were enacted for the purpose
of compelling religious and conscientious objectors to fill Plan B
contraceptive prescriptions despite those objections. Plaintiffs allege
that when the emergency rule was promulgated on April 1, 2005, the
Governor publicly warned that Illinois pharmacists who violate the
rule face significant penalties, ranging from fines to the loss of
professional licenses. Then, on April 13, 2005, the Governor issued
a press release indicating that he will “vigorously defend” the
emergency rule requiring pharmacists to sell and fill prescriptions for
contraceptives without delay. The Governor further warned on that
same date as follows:
“If a pharmacy wants to be in the business of dispensing
contraceptives, then it must fill prescriptions without making
moral judgments. Pharmacists–like everyone else–are free to
hold personal religious beliefs, but pharmacies are not free
to let those beliefs stand in the way of their obligation to
their customers.” Press Release of Governor Blagojevich,
April 13, 2005.3
2
The identity of one of the defendants has changed. Fernando Grillo,
formerly the secretary of the Department, has been succeeded by Dean
Martinez, the current secretary. Pursuant to section 2–1008(d) of the Code
of Civil Procedure (735 ILCS 5/2–1008(d) (West 2006)), plaintiffs’ action
now proceeds against Martinez. In addition, Daniel Bluthardt, formerly the
acting director of the Division, is currently the director of the Division.
3
On March 13, 2006, Governor Blagojevich allegedly reaffirmed his
public position that the rule was directed at pharmacists who object to
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Plaintiffs’ complaint also alleges that as early as September 15,
2005–less than a month after the rule became final–defendants
initiated proceedings against pharmacies alleged to have violated the
rule and emphasized that they were “vigorously” enforcing the rule.
See Illinois Department of Financial and Professional Regulation
Press Release, September 15, 2005. Furthermore, defendants have
issued an additional rule requiring all Division I pharmacies to
“prominently display” a notice advising customers of the rule and
inviting them to file complaints against refusing pharmacists with the
Department through its website. 68 Ill. Adm. Code §§1330.91(k)(1),
(k)(2) (2005).
Plaintiffs filed a motion for a temporary restraining order on
September 14, 2005. The trial court denied the motion after a hearing,
finding that plaintiffs have “another adequate remedy at law and [are]
not likely to be successful on the merits due to standing and ripeness
issues.” On October 28, 2005, plaintiffs filed their amended
complaint, along with a motion for a temporary injunction to enjoin
enforcement of the rule. On that same day, defendants filed a motion
to dismiss pursuant to section 2–619 of the Code of Civil Procedure
(735 ILCS 5/2–619 (West 2004)). In their motion, defendants argued,
among other things, that plaintiffs lacked standing to challenge
subsection (j) and failed to exhaust their administrative remedies
because they did not wait to be sued and disciplined by the
Department before resorting to a declaratory judgment action in
circuit court. Following a hearing, the circuit court granted
defendants’ motion to dismiss. The docket entry for November 18,
2005, showed that the court “rule[d] in favor of Defendants granting
the motion to dismiss with prejudice on the grounds of lack of
standing, ripeness, and failure to exhaust administrative remedies.”
In December 2005 plaintiffs timely filed their notice of appeal,
arguing, inter alia, that they had standing to bring their claim and they
were not required to exhaust administrative remedies. In August
2006, prior to the filing of the appellate court opinion in this case, the
dispensing certain drugs on moral grounds. See Menges v. Blagojevich, 451
F. Supp. 2d 992, 997 (C.D. Ill. 2006). According to the complaint in
Menges, the Governor stated that pharmacists who “hold such moral views
should find another profession.” Menges, 451 F. Supp. 2d at 997.
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United States Food and Drug Administration (FDA) approved Plan
B contraceptives for over-the-counter, nonprescription sale to women
18 and older. The drug remains available as a prescription drug for
women 17 and under. Subsection (j) applies only to prescriptions for
contraceptives and not to over-the-counter sales.
In March 2007, a divided appellate court affirmed the circuit
court’s dismissal of plaintiffs’ complaint. 371 Ill. App. 3d 1175. The
majority applied the ripeness standards set forth in Abbott
Laboratories v. Gardner, 387 U.S. 136, 149, 18 L. Ed. 2d 681, 691,
87 S. Ct. 1507, 1515 (1967), which requires consideration of two
factors: “the fitness of the issues for judicial decision and the hardship
to the parties of withholding court consideration.” In applying Abbott
Laboratories, the appellate court recognized that plaintiffs had
satisfied the first factor in that (1) the Department’s rule applies to
plaintiffs, (2) the State had made clear it intended to enforce the rule,
and (3) the issue of whether the rule is facially valid is fit for judicial
decision. The majority concluded, however, that plaintiffs’ claims
were not ripe for review based on the second factor of Abbott
Laboratories, finding that plaintiffs’ chances of suffering future
hardship were too “slim” to outweigh courts’ “traditional reluctance
to get involved in administrative determinations.” 371 Ill. App. 3d at
1181. The majority predicted that it is “extremely unlikely” one of
plaintiffs “will ever be placed in a position where he will have to
violate either his conscience or the letter of the Rule.” 371 Ill. App.
3d at 1184. In view of this holding, the appellate court declined to
address whether plaintiffs failed to exhaust their administrative
remedies. Justice Turner dissented, asserting that plaintiffs’ claims
were not only ripe, but compelling under both the Conscience Act and
the Religious Freedom Act. 371 Ill. App. 3d at 1185, 1187 (Turner,
J., dissenting).
Plaintiffs filed a petition for rehearing in the appellate court. In
that petition, plaintiffs noted that the appellate court found that
plaintiffs had “failed to allege that they have been presented with a
prescription for emergency contraception since the Rule went into
effect” (371 Ill. App. 3d at 1177), and that the court used this as a
basis for finding that the rule’s application to plaintiffs was remote.
Plaintiffs attached two affidavits to their petition. In the first, Vander
Bleek stated that since the rule went into effect, plaintiffs have been
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presented with prescriptions for Plan B contraception more than 15
times. Plaintiffs argued in their petition that these were precisely the
occurrences that the court found so “extremely unlikely” that their
lack rendered plaintiffs’ claims unripe.
Vander Bleek also alleged in his affidavit that his Prophetstown
pharmacy had been forced to close because of the chilling effect of
the rule. Vander Bleek explained that the pharmacist who ran the
pharmacy at that location moved out of state. A replacement
pharmacist ultimately refused to work there because of the possibility
that the pharmacy could be prosecuted and lose its license because of
its policy against selling morning-after contraceptives. No other
qualified pharmacist could be found. As a result, the pharmacy was
forced to close, resulting in an annual loss of profits of $75,000.
Additionally, plaintiffs attached an affidavit from Kosirog to
their petition for rehearing. Kosirog’s affidavit stated that he had been
required to spend additional resources recruiting pharmacists and
addressing their concerns about the impact of the rule upon his
business.
The appellate court majority denied the petition for rehearing
over a second dissent from Justice Turner. We allowed plaintiffs’
petition for leave to appeal. 210 Ill. 2d R. 315. We further allowed the
American Association of Pro Life Obstetricians and Gynecologists,
the Christian Medical and Dental Associations, the Catholic Medical
Association, Physicians for Life, and the National Association of
Prolife Nurses to file an amicus curiae brief. We also allowed the
Christian Legal Society and Christian Pharmacists Fellowship
International to file an amicus curiae brief. In addition, we allowed
the Illinois Pharmacists Association and the American Pharmacists
Association to file an amicus curiae brief. Finally, we allowed the
American Civil Liberties Union of Illinois to file an amicus curiae
brief. 210 Ill. 2d R. 345.
After briefing and oral argument in this court, the Department
revised subsection (j), effective April 16, 2008. The amendment was
the result of a settlement in other litigation involving different parties
over the legality of the rule. See 32 Ill. Reg. 7116 (May 2, 2008). The
amended version of subsection (j) retains the essential features of the
previous version, including the requirements that (1) a pharmacy
which sells contraceptives must, when presented with a valid
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prescription, dispense the contraceptive “without delay”; and (2) if
the contraceptive is not in stock, the pharmacy “must obtain” the
contraceptive under the pharmacy’s standard procedures for ordering
contraceptive drugs not in stock. The amended version, however,
adds several, more onerous provisions pertaining specifically to
“emergency contraception.”
The amended version now specifically mandates that each retail
pharmacy “use its best efforts to maintain adequate stock of
emergency contraception to the extent that it continues to sell
contraception.” 68 Ill. Adm. Code §1330.91(j)(2) (amended by 32 Ill.
Reg. 7116, eff. April 16, 2008). It also mandates a new dispensing
procedure called “remote medication order processing” (RMOP). If
a pharmacist objects to dispensing emergency contraception and there
is no nonobjecting pharmacist present at this pharmacy, which is
deemed by the amendment the “dispensing pharmacy,” the dispensing
pharmacy must still sell the emergency contraceptive through RMOP.
RMOP involves a nonobjecting pharmacist at a different location
authorizing the dispensing of the drug by a nonpharmacist employee
at the dispensing pharmacy. 68 Ill. Adm. Code §§1330.91(j)(3)(A),
(j)(3)(B) (amended by 32 Ill. Reg. 7116, eff. April 16, 2008). The new
amendment further requires that a retail pharmacy must be
responsible “for ensuring either that there is a non-objecting
pharmacist scheduled at all times the pharmacy is open, or that there
is a licensed pharmacist available to perform RMOP for emergency
contraception at all times the pharmacy is open and no non-objecting
pharmacist is available at the pharmacy.” 68 Ill. Adm. Code
§1330.91(j)(4) (amended by 32 Ill. Reg. 7116, eff. April 16, 2008).
ANALYSIS
Before this court, plaintiffs first argue that their claims for
declaratory and injunctive relief are ripe for judicial review and
should not have been dismissed. Plaintiffs contend that their
preenforcement challenge to the validity of the regulation is
justiciable because the very existence of the rule constitutes illegal
coercion in violation of the Illinois Health Care Right of Conscience
Act and the Illinois Religious Freedom Restoration Act, as well as the
first amendment of the United States Constitution. Plaintiffs also
claim that they have stated a claim that is ripe for resolution
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because–even absent an enforcement action by the state against
plaintiffs–plaintiffs are given a right by these two Illinois statutes to
pursue an affirmative claim. Additionally, plaintiffs maintain that
they have satisfied the Abbott Laboratories test for ripeness because
the rule has a concrete, negative impact on their operations, and they
have therefore shown that sufficient hardship would be caused by
withholding court consideration.
Defendants argue that plaintiffs’ claims are unripe because the
rule’s application to plaintiffs is remote. Defendants claim that the
rule’s structure makes it unlikely–as a practical matter–that plaintiffs’
obligations to dispense would ever be triggered. Relying on the
version of the rule in effect prior to the April 16, 2008, amendment,
defendants claim that the rule does not require plaintiffs to stock
emergency contraception. Rather, it requires that if a potential
customer presents a prescription, the pharmacy has to order the out-
of-stock contraceptive only if the customer requests that the pharmacy
order it. According to defendants, this is an unlikely event that tends
to show that plaintiffs will not experience the rule’s impact in a
concrete way. Additionally, defendants argue that plaintiffs’
complaint was properly dismissed because they failed to make use of
a statutory variance procedure. Defendants note that the Illinois
Pharmacy Practice Act of 1987 authorizes the Director to grant a
variance excusing compliance with an administrative rule
promulgated under the authority of the Pharmacy Act when applying
the provision would be “unnecessarily burdensome.” 225 ILCS
85/11(a) (West 2004). In defendants’ view, plaintiffs’ failure to seek
a variance constituted a failure to exhaust administrative remedies.
I. Justiciability
We first examine whether the requirements of justiciability have
been satisfied. Concepts of justiciability are divided into different
categories, such as advisory opinions, feigned and collusive cases,
standing, ripeness, mootness, political questions, and administrative
questions. Alternate Fuels, Inc. v. Director of the Illinois
Environmental Protection Agency, 215 Ill. 2d 219, 230 (2004).
Where, as here, justiciability is challenged in a motion to dismiss
under section 2–619, a court must accept as true all well-pleaded facts
in plaintiffs’ complaint and all inferences that can reasonably be
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drawn in plaintiffs’ favor. In re Estate of Schlenker, 209 Ill. 2d 456,
461 (2004). Moreover, it is well established that a cause of action
should not be dismissed with prejudice unless it is clear that no set of
facts can be proved under the pleadings which would entitle plaintiffs
to relief. Smith v. Central Illinois Regional Airport, 207 Ill. 2d 578,
584-85 (2003). An order granting a motion to dismiss based on a lack
of justiciability presents a question of law, which we review de novo.
See Doe v. Chicago Board of Education, 213 Ill. 2d 19, 24 (2004);
Schlenker, 209 Ill. 2d at 461.
Section 2–701 of the Code of Civil Procedure sets forth the
general requirements for a justiciable declaratory judgment action, as
follows:
“No action or proceeding is open to objection on the
ground that a merely declaratory judgment or order is sought
thereby. The court may, in cases of actual controversy, make
binding declarations of rights, having the force of final
judgments, whether or not consequential relief is or could be
claimed, including the determination, at the instance of
anyone interested in the controversy, of the construction of
any statute *** or other governmental regulation *** and a
declaration of the rights of the parties interested. The
foregoing enumeration does not exclude other cases of actual
controversy. The court shall refuse to enter a declaratory
judgment or order, if it appears that the judgment or order,
would not terminate the controversy or some part thereof,
giving rise to the proceeding.” 735 ILCS 5/2–701(a) (West
2006).
The declaratory judgment statute must be given a liberal construction
and should not be unduly restricted by a technical interpretation. First
of America Bank, Rockford, N.A. v. Netsch, 166 Ill. 2d 165, 174
(1995). This court has recognized that the “ ‘ “mere existence of a
claim, assertion or challenge to plaintiff’s legal interests, *** which
cast[s] doubt, insecurity, and uncertainty upon plaintiff’s rights or
status, damages plaintiff’s pecuniary or material interests and
establishes a condition of justiciability.” ’ ” Alternate Fuels, 215 Ill.
2d at 231, quoting Netsch, 166 Ill. 2d at 175, quoting Roberts v.
Roberts, 90 Ill. App. 2d 184, 187 (1967).
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A threshold question in any declaratory judgment action is
whether the plaintiff has standing. Messenger v. Edgar, 157 Ill. 2d
162, 170 (1993). To establish standing in such a case, there must be
an “actual controversy” between adverse parties, and the party
seeking the declaratory judgment must be “interested” in the
controversy. Underground Contractors Ass’n v. City of Chicago, 66
Ill. 2d 371, 375-76 (1977). But here, we are considering justiciability
in the context of administrative action, so we must specifically
consider ripeness as a component of justiciability. Alternate Fuels,
215 Ill. 2d at 231. In this setting, the question of standing becomes
subsumed in the question of ripeness. This is because the more
stringent requirements for ripeness will necessarily establish the less
strict demands of standing. Thus, if we reverse the appellate court’s
determination on ripeness in this case, we would necessarily reverse
the trial court’s determination on standing.
A. Ripeness
The basic rationale of the ripeness doctrine is to “prevent the
courts, through avoidance of premature adjudication, from entangling
themselves in abstract disagreements over administrative policies,
and also to protect the agencies from judicial interference until an
administrative decision has been formalized and its effects felt in a
concrete way by the challenging parties.” Abbott Laboratories, 387
U.S. at 148-49, 18 L. Ed. 2d at 691, 87 S. Ct. at 1515. In Abbott
Laboratories, the Supreme Court formulated a two-prong inquiry to
evaluate ripeness: first, courts look at whether the issues are fit for
judicial decision; and second, they look at any hardship to the parties
that would result from withholding judicial consideration. Abbott
Laboratories, 387 U.S. at 149, 18 L. Ed. 2d at 691, 87 S. Ct. at 1515.
The Court held that the plaintiffs in that case, who were various drug
companies, could bring a preenforcement challenge to an agency’s
interpretation of a federal statute that would have required the
established name of a drug to be used every time the proprietary name
is used. The Court found that the impact of the regulation was
sufficiently direct and immediate so as to render judicial review
appropriate because the plaintiffs would have to incur the significant
cost of changing all their labels over or else risk criminal and civil
penalties for their belief that their current labels were in compliance.
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Abbott Laboratories, 387 U.S. at 152-53, 18 L. Ed. 2d at 693-94, 87
S. Ct. at 1517.
This court specifically adopted the Abbott Laboratories approach
to considering ripeness claims in both Alternate Fuels, 215 Ill. 2d at
231, and National Marine, Inc. v. Illinois Environmental Protection
Agency, 159 Ill. 2d 381, 389 (1994). In Alternate Fuels, this court
found that an agency’s interpretation of a statute was ripe for judicial
review where the agency interpretation affected the plaintiff in a
“concrete way,” causing the plaintiff to lose financially. Alternate
Fuels, 215 Ill. 2d at 233. National Marine, on the other hand, found
that the mere issuance of a notice under section 4(q) of the Illinois
Environmental Protection Act did not make the plaintiff’s claims ripe
where there was no effect on the plaintiff’s legal rights, as it remained
free to deal with its property as it saw fit. National Marine, 159 Ill. 2d
at 389-90.
Here, we conclude that plaintiffs’ claims are ripe under the
Abbott Laboratories criteria. With respect to the first factor, the
appellate court ruled in favor of plaintiffs, finding that “[i]t is fairly
clear the issue of whether the Rule is facially valid is fit for a judicial
decision.” 371 Ill. App. 3d at 1181. We agree with the appellate
court’s assessment that the issues are fit for judicial decision. The
claims raised are essentially legal in nature–whether the language of
the rule violates the constitution and must therefore be declared void,
as well as whether the rule violates various Illinois and federal
statutes.4 See Minnesota Citizens Concerned for Life v. Federal
4
In addition to the specifically mentioned claims above, plaintiffs have
alleged violations of (1) the Illinois Administrative Procedure Act (5 ILCS
100/5–5 et seq. (West 2004)), (2) the Illinois Pharmacy Practice Act of
1987 (225 ILCS 85/1 et seq. (West 2004)), (3) the Illinois Human Rights
Act (775 ILCS 5/1–101 et seq. (West 2004)), (4) section 2000e of title VII
of the federal Civil Rights Act of 1964 (42 U.S.C. §2000e (2000)),
allegedly resulting in federal preemption of subsection (j) of the
Department’s rule, (5) the fourteenth amendment of the United States
Constitution, and (6) the Weldon amendment, which prohibits certain
federal assistance to states that discriminate against any individual or
institutional health-care facility that refuses to take part in any facet of
abortion. See Pub. L. No. 108–447, §508(d), 118 Stat. 2809 (December 8,
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Election Comm’n, 113 F.3d 129, 132 (8th Cir. 1997) (“Fitness for
judicial decision means, most often, that the issue is legal rather than
factual”).
As to the second factor, we find that sufficient hardship exists so
as to make judicial review appropriate. Again, we note that
defendants argue the version of the rule in effect prior to April 16,
2008. They contend that the rule does not require plaintiffs to stock
Plan B contraception and therefore does not require plaintiffs to take,
or refrain from, any action. Defendants further argue that the rule’s
structure makes it unlikely that plaintiffs’ obligation to dispense
would ever be triggered because it is a remote possibility that a
customer would ever request plaintiffs to order Plan B. We disagree
for several reasons.
First, we note that prior to the April 2008 amendment, all it
would have taken to trigger the rule and subject plaintiffs to the
possibility of license revocation was for a customer with a
prescription for Plan B to say the words “order it.” In any event, the
rule has been changed and in its current form has an even greater
concrete and coercive impact on plaintiffs. The rule now expressly
requires that plaintiffs must stock and dispense Plan B contraception.
Under the current version, the simple failure by plaintiffs to make
efforts to stock the contraceptive in question would subject plaintiffs
to a range of penalties, including license revocation. Additionally,
they must dispense it within their stores through RMOP. Under these
circumstances, application of the rule to plaintiffs cannot be
considered remote. Instead, the rule affects their business operations
on a day-to-day basis and exposes plaintiffs to strong sanctions. This
case is thus indistinguishable from Abbott Laboratories, where the
Court found that the plaintiffs could not be denied access to the courts
under a ripeness theory, stating as follows: “the regulation is directed
at them in particular; it requires them to make significant changes in
their everyday business practices; if they fail to observe the
Commissioner’s rule they are quite clearly exposed to the imposition
2004); see also 42 U.S.C. §300a–7(b)(1) (2000); 42 U.S.C. §238n(a)(1),
(c)(2) (2000).
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of strong sanctions.” Abbott Laboratories, 387 U.S. at 154, 18 L. Ed.
2d at 694, 87 S. Ct. at 1518.
Furthermore, we note that it is appropriate for this court to
consider the latest version of the rule to inform our ripeness decision.
Again, we point out that the trial court’s order granting the motion to
dismiss should not be affirmed unless it appears that plaintiffs can
prove no set of facts that would entitle them to recovery. Moreover,
ripeness is decided based on all the information available to the court
at the time of the decision; intervening events that occur after the
decision in the lower courts should be included, just as must be done
with questions of mootness. See 13A C. Wright, A. Miller, E. Cooper
& R. Freer, Federal Practice & Procedure §3532.1 (Supp. 2007). See,
e.g., Blanchette v. Connecticut General Insurance Corps., 419 U.S.
102, 140, 42 L. Ed. 2d 320, 351, 95 S. Ct. 335, 356-57 (1974);
Hargrave v. Vermont, 340 F.3d 27, 34 (2d Cir. 2003); Buckley v.
Valeo, 424 U.S. 1, 114-18, 46 L. Ed. 2d 659, 742-44, 96 S. Ct. 612,
680-82 (1976) (per curiam) (basing ripeness determination on facts
occurring “[s]ince the entry of judgment by the Court of Appeals”);
In re UAL Corp., 468 F.3d 444, 453 (7th Cir. 2006) (describing
Buckley as a case where “dispute [was] resolved on the merits on
appeal, even though the controversy was not ripe at the time the
district court acted”); Reno v. Catholic Social Services, Inc., 509 U.S.
43, 73, 125 L. Ed. 2d 38, 66, 113 S. Ct. 2485, 2504 (1993) (“it is the
situation now *** rather than at the time of the initial complaints, that
must govern”) (O’Connor, J., concurring)); cf. Fisch v. Loews
Cineplex Theatres, Inc., 365 Ill. App. 3d 537, 538 (2005) (considering
new evidence alleged after appellate briefing on issue of mootness);
City of Chicago v. Yellen, 325 Ill. App. 3d 311, 314 (2001) (allowing
supplementation of the record to aid the court in deciding personal
jurisdiction).
Second, we believe that sufficient hardship exists based on
plaintiffs’ affidavits attached to their appellate court petition for
rehearing. These affidavits show that plaintiffs have already suffered
financial loss because of the rule. Vander Bleek asserted that he was
forced to close one store because of the rule at an annual cost of
$75,000. Kosirog also claimed financial loss due to having to expend
additional resources to recruit pharmacists and to address concerns
about the rule. These circumstances are similar to the choice the
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plaintiffs faced in both Abbott Laboratories and Alternate Fuels
between complying with the regulation at added cost or else
continuing on in opposition to the rule and risking the even greater
harm of serious penalties. See Abbott Laboratories, 387 U.S. at 154,
18 L. Ed. 2d at 694, 87 S. Ct. at 1518; Alternate Fuels, 215 Ill. 2d at
232-33. In sum, the rule has affected plaintiffs in a concrete way on
a day-to-day basis, and they can allege that they have lost financially.
Finally, we note that the rule contained in subsection (j) in both
the pre- and post-April 16, 2008, version, poses harm to the plaintiffs
that is even greater than financial loss. Plaintiffs allege that the rule
chills their first amendment rights. Plaintiffs are forced to comply
with the rule or else compromise their rights to act according to their
consciences and religious tenants. In such a case, courts relax the
ripeness requirement of Abbott Laboratories. See, e.g., Minnesota
Citizens Concerned For Life, 113 F.3d at 132 (“Sufficient hardship
is usually found if the regulation *** chills protected First
Amendment activity”). In fact, courts routinely find not just harm, but
irreparable harm, where a plaintiff asserts a chill on free exercise
rights. See, e.g., Tenafly Eruv Ass’n v. Borough of Tenafly, 309 F.3d
144, 178 (3d Cir. 2002); Stormans, Inc. v. Selecky, 524 F. Supp. 2d
1245, 1266 (W.D. Wash. 2007) (finding the first amendment claims
of pharmacists and pharmacies were ripe and granting a preliminary
injunction because of the likelihood of success on the merits and the
possibility of irreparable injury).
Here, plaintiffs’ complaint raises a first amendment claim.
Specifically, they allege that the rule substantially burdens their free
exercise of religion, is not narrowly tailored to serve a compelling
governmental interest, and is not the least restrictive means of serving
any alleged governmental interest. Plaintiffs also assert that the
purpose and object of the rule is to coerce conscientious and religious
objectors to fill Plan B prescriptions despite their objections.
Courts have specifically found that pharmacists and pharmacies
in similar cases involving state regulation requiring the dispensing of
Plan B contraception have sufficiently stated causes of action that
could be considered by the judiciary. See Stormans, Inc. v. Selecky,
524 F. Supp. 2d 1245 (W.D. Wash. 2007) (found that plaintiffs’
claims were ripe where plaintiffs had sufficiently alleged a first
amendment claim); Menges v. Blagojevich, 451 F. Supp. 2d 992-16-
(C.D. Ill. 2006) (court denied defendants’ motion to dismiss and
directed them to answer complaint that sufficiently alleged a first
amendment violation). Accordingly, we find that plaintiffs have
stated a cause of action that is ripe for judicial review.
B. Exhaustion and the Variance Procedure
We next turn to defendants’ contention that plaintiffs failed to
exhaust their administrative remedies by failing to seek a variance
before the Department. We initially note that the circuit court
dismissed the amended complaint with prejudice on the grounds of
lack of standing, ripeness and failure to exhaust administrative
remedies. With respect to the exhaustion-of-remedies ground, the
circuit court did not consider whether plaintiffs were required to seek
a variance before proceeding; this issue was not raised by defendants
until sometime in the appellate court. Instead, the exhaustion
argument in the circuit court centered around whether plaintiffs
should have to slog through a disciplinary proceeding and suffer loss
of their licences, or at least wait to be cited and sued, before
challenging the rule in circuit court. The appellate court affirmed the
dismissal with prejudice on the sole grounds of ripeness. It did not
reach the exhaustion-of-remedies issue, finding it was unnecessary to
reach it given its holding on ripeness.
We must reject the defendants’ exhaustion argument for several
reasons. First, the Pharmacy Practice Act of 1987 (Pharmacy Act)
(225 ILCS 85/11 et seq. (West 2004)) does not provide any procedure
for the filing of a claim by a party who has conscientious objections
to the rule and whose rights might be chilled by the rule. Nor does it
provide any procedure that would govern the agency’s decision with
respect to a variance from the rule. Specifically, the variance statute
reads as follows:
“Duties of the Department. The Department shall exercise
the powers and duties prescribed by the Civil Administrative
Code of Illinois for the administration of Licensing Acts and
shall exercise such powers and duties necessary for
effectuating the purpose of this Act. However, the following
powers and duties shall be exercised only upon action and
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report in writing of a majority of the Board of Pharmacy to
take such action:
(a) Formulate such rules, not inconsistent with law and
subject to the Illinois Administrative Procedure Act, as may
be necessary to carry out the purposes and enforce the
provisions of this Act. The Director may grant variances
from any such rules as provided for in this Section;
***
(c) ***
The granting of variances from rules promulgated
pursuant to this Section in individual cases where there is a
finding that:
(1) the provision from which the variance is granted is
not statutorily mandated;
(2) no party will be injured by the granting of the
variance; and
(3) the rule from which the variance is granted would,
in the particular case, be unreasonable or unnecessarily
burdensome.” (Emphases added.) 225 ILCS 85/11 (West
2006). See 68 Ill. Adm. Code §1330.110 (2005).
The case before us poses a significantly different situation than
all of the cases cited by the parties that discuss the exhaustion
doctrine. Those cases involve situations where either (1) the
applicable statute gave the litigant a right to bring a claim before the
agency with a corresponding procedure to govern the claim before the
agency (right to a hearing, time frame for decisions, etc.) or (2) the
agency sought an enforcement action against the litigant, but he failed
to wait for the completion of the agency proceeding or failed to take
advantage of his right to reconsider the decision before the agency
prior to seeking judicial review. Neither situation is applicable here.
To the extent the second situation could be applicable, it would be
more along the lines of a ripeness challenge than an exhaustion
argument, because there is, as of yet, no agency enforcement action
against plaintiffs. But as discussed above, we have already found that
plaintiffs’ claims are ripe for judicial consideration. Moreover, the
Conscience Act and the Religious Freedom Act on which plaintiffs’
claims are based expressly authorize plaintiffs to seek judicial relief
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from the courts when their rights are burdened by government action.
See 745 ILCS 70/12 (West 2006); 775 ILCS 35/20 (West 2006).
Thus, this case clearly differs from all of the cited cases that have
considered exhaustion.
Second, even if an exhaustion analysis applies, we note that there
are a number of exceptions that would be applicable. An aggrieved
party may seek judicial review of an administrative decision without
complying with the exhaustion of remedies doctrine where a statute,
ordinance or rule is attacked as unconstitutional on its face. Canel v.
Topinka, 212 Ill. 2d 311, 321 (2004).
Here, plaintiffs’ first amendment claim is a facial challenge to
the statute. The difference between an as-applied and a facial
challenge is that if a plaintiff prevails in an as-applied claim, he may
enjoin the objectionable enforcement of a statute only against himself,
while a successful facial challenge voids enactment in its entirety and
in all applications. Napleton v. Village of Hinsdale, 229 Ill. 2d 296,
306 (2008). Under plaintiffs’ theory, if they prevail, the offending
provisions of subsection (j) would be declared void completely, not
just as applied to plaintiffs. It is therefore a facial challenge.
A challenge to a statute does not become an as-applied challenge,
as opposed to a facial challenge, simply because the text is neutral
and the law appears at first glance to be one of general applicability.
A finding with respect to the facial neutrality of the statute should not
be confused with the ultimate determination that a statute is void on
its face because it has a religious motivation and does not satisfy strict
scrutiny standards. See Church of the Lukumi Babalu Aye, Inc. v. City
of Hialeah, 508 U.S. 520, 534, 124 L. Ed. 2d 472, 490, 113 S. Ct.
2217, 2227 (1993); Stormans, 524 F. Supp. 2d at 1257-58, 1266. If
a rule is facially neutral as to the text, a court must then look beyond
the face of the rule to determine the true object of the statute. See
Lukumi, 508 U.S. at 534, 124 L. Ed. 2d at 491, 113 S. Ct. at 2227.
Where the object of the rule is to infringe upon or restrict practices
because of their religious motivation, the law is not neutral, and it is
invalid unless it is justified by a compelling interest and is narrowly
tailored to advance that interest. Lukumi, 508 U.S. at 533, 124 L. Ed.
2d at 490, 113 S. Ct. at 2227. Pertinent to this inquiry is the historical
background of the decision under challenge, the specific series of
events leading to enactment of the subject regulation, and the
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legislative or administrative history, including contemporaneous
statements made by members of the decisionmaking body. Stormans,
524 F. Supp. 2d at 1258, citing Village of Arlington Heights v.
Metropolitan Housing Development Corp., 429 U.S. 252, 267-68, 50
L. Ed. 2d 450, 465-66, 97 S. Ct. 555, 564-65 (1977). Additionally, the
impact of the law in its actual operation is strong evidence of its
operation and purpose. Stormans, 524 F. Supp. 2d at 1258, citing
Lukumi, 508 U.S. at 535, 124 L. Ed. 2d at 491, 113 S. Ct. at 2228.
Here, the rule at issue is facially neutral as to the text, but
plaintiffs have alleged that the rule was motivated by a desire to
compel religious objectors to dispense Plan B contraceptives in
violation of their beliefs and religious practices. In such a case, the
regulation is subject to strict scrutiny and can only survive if it is
justified by a compelling governmental interest. Accordingly,
plaintiffs did not have to seek a variance and exhaust administrative
remedies before filing their claim in circuit court.
A party may also seek review where no issues of fact are
presented or agency expertise is not involved. Canel, 212 Ill. 2d at
321; Castaneda v. Illinois Human Rights Comm’n, 132 Ill. 2d 304,
309 (1989). Moreover, exhaustion is not required if the administrative
remedy is inadequate or futile or in instances where the litigant will
be subjected to irreparable injury due to lengthy administrative
procedures that fail to provide interim relief. Canel, 212 Ill. 2d at 321.
In Canel, plaintiffs filed suit in circuit court seeking return of
unliquidated stock that had been turned over to the state but belonged
to plaintiffs. Plaintiffs did not comply with the administrative
procedure that required them to specifically request a hearing with the
Treasurer or seek judicial review of the final administrative decision
of the Treasurer.
This court in Canel excused the lack of exhaustion by stating the
following:
“We note that, in this case, plaintiff specifically alleged that
although section 15 of the Act allows the state discretion in
returning the dividends of unliquidated stock to owners, ‘it
is the policy and practice of [the Treasurer’s office] not to
return to the property owner any income *** on securities
held in custody pursuant to the Act.’ Plaintiff further alleged
-20-
that ‘in no case’ has ‘such income *** ever been returned to
the owner.’ In their motion to dismiss, defendants did not
dispute plaintiff’s allegations on this point. Indeed, one of
defendants’ bases for dismissal was that plaintiff was ‘not
entitled’ to the dividends under the Act. In light of the
parties’ positions, this is not a case where facts need to have
been developed before the agency nor does the question
presented constitute a matter for agency expertise. Rather,
the issue revolves around the construction and meaning of
section 15 of the Act. Moreover, the pleadings reveal that it
would have been futile for plaintiff, or any other similarly
situated claimant for that matter, to exhaust administrative
remedies with respect to asserting a claim for dividends on
stock held by defendants pursuant to the Act because the
defendants’ position in these types of cases is that the Act
transforms into state property dividends earned on shares of
stock presumed abandoned under the Act. Defendants argue
that because of that fact they need not return dividends to the
previous owner. Section 15, however, clearly contains an
exception that provides that claimants may in fact be entitled
to dividends on unliquidated stock. Given that defendants, as
alleged by plaintiff, have never chosen to exercise their
discretion in favor of a claimant–despite the permissive
language of the statute–we hold that exhaustion, under these
circumstances, was unnecessary and that our review of
section 15 is not limited solely to its facial validity. With this
procedural matter settled, we now turn [to] the merits.”
(Emphasis added.) Canel, 212 Ill. 2d at 321-22.
We believe that Canel supports plaintiffs’ position in the present
case that seeking recourse before the administrative agency would be
futile and that this is an exception to the exhaustion requirement.
Plaintiffs have alleged that defendants are on record via the
Governor’s public statements, warning that the entire point of the rule
is to coerce pharmacists with religious objections into dispensing Plan
B contraceptives. The Governor has allegedly publicly stated that
“pharmacists with moral objections [to dispensing Plan B
contraceptives] should find another profession,” and that they “must
fill prescriptions without making moral judgments.” Defendants have
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also declared that the rule will be “vigorously enforced.” Thus, it can
be concluded that granting variances in these kinds of cases would
eviscerate the whole purpose for the rule. Under such circumstances,
exhaustion is not required.
Defendants argue that the main entities they are trying to coerce
are large pharmacies that do not hold religious objections. They argue
that they are trying to prevent situations where an individual
pharmacist with a religious objection is the only one on duty when a
Plan B prescription is called upon to be filled. But, if what defendants
say is true, they could more narrowly tailor the rule to provide an
exemption for pharmacies that hold religious objections. Instead, they
have publicly stated that they will vigorously prosecute pharmacists
with religious objections to drive them out of the profession and that
a pharmacy must fill Plan B prescriptions without making moral
judgments if it wants to stay in business.
Defendants also suggest that plaintiffs could get a variance if
they could show (1) that they were “religious institutions,” i.e., have
true religious objections, and (2) that there were other pharmacies
within a certain number of blocks that would be able to fill such
prescriptions. Then, defendants argue, the statutory standard for a
variance could be met, which requires a showing that no one will be
hurt and that application of the rule in this particular case would be
burdensome and unreasonable. We find defendants’ argument to be
unpersuasive. The public statements of defendants in this case are
analogous to the allegation in Canel that the remedy requested–return
of funds–had never been granted before to anyone. Also, there is no
indication that defendants have ever granted a variance or would
choose to grant one to a pharmacy who refused to dispense Plan B
contraceptives. And again, the Religious Freedom and Conscience
Acts expressly confer a right to file a judicial action when the rights
protected therein are infringed upon.
Beahringer v. Page, 204 Ill. 2d 363 (2003), is the main case
relied upon by defendants to argue the inapplicability of the futility
exception. In Beahringer, the plaintiff inmate filed a declaratory
judgment action alleging that the warden violated his first amendment
rights in authorizing the taking of his art supplies. The inmate had
commenced the required administrative process by filing a complaint
to challenge the confiscation. Basically, the statute required a decision
-22-
within 45 days “whenever possible.” The inmate waited 60 days
without receiving a decision or a response and then filed suit without
first getting the response. Beahringer found that it was not enough for
the plaintiff to allege that grievance procedures with the warden
“historically have failed.” Beahringer also found that the time
requirements were merely directory. Beahringer further stated as
follows:
“A party will not be required to exhaust his or her
administrative remedies when it would be patently useless to
do so. [Citation.] ‘However, the fact that there are clear
indications that the agency may or will rule adversely is
generally inadequate to terminate the administrative process
or to avoid the exhaustion requirement.’ [Citations.] Further,
mere conclusions of fact or law unsupported by specific
factual allegations are insufficient to state a cause of action.
[Citations.]
Plaintiff’s declaratory judgment action was properly
dismissed for failure to sufficiently plead that he exhausted
his administrative remedies. Our holding obviates discussion
of plaintiff’s first amendment claim.” Beahringer, 204 Ill. 2d
at 378.
The case before us is easily distinguished from Beahringer. Here,
plaintiffs have brought a facial challenge to the rule under the first
amendment. Additionally, there is no administrative process that
prevented the instant plaintiffs from bringing their claims in circuit
court. Nor is there any procedure laid out in connection with seeking
a variance. Instead, the statute simply says that the Director may grant
a variance, with a list of criteria, which, based on the Governor’s
prior statements, show that it would violate the purpose of the rule to
grant the variance. As to futility, plaintiffs rely upon more than a mere
allegation that grievances have “historically failed.” Rather, they rely
upon the Governor’s statements that the purpose of the rule is to
coerce pharmacists into violating their religious objections. They also
rely on defendants’ declared intent to “vigorously enforce” the rule
without ever mentioning the possibility that variances might be
granted.
Defendants claim that the appropriate procedure to be followed
in this case is for an aggrieved party to apply for a variance by writing
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a letter or making a telephone call to the Department. The Director
then considers the criteria for granting a variance under section 11 of
the Pharmacy Act. Defendants further claim that granting a variance
is a fact question that needs agency expertise because the Director
would have to look at whether anyone will be hurt and if the applicant
for the variance would really be burdened.
We do not find defendants’ arguments persuasive. There is no
provision in the statute for a hearing before granting or denying a
variance, and the statute does not authorize the Director to conduct
any such hearing. This militates against the notion that a fact question
or agency expertise is crucial. As previously stated, if there are no
questions of fact or agency expertise is not involved, a litigant is not
required to exhaust remedies. In our opinion, this is largely a case
involving a question of law–whether pharmacists and pharmacies can
be compelled to violate their consciences and religious beliefs in
violation of two Illinois statutes and the first amendment. There is no
agency expertise involved. Accordingly, we find that plaintiffs did not
have to seek a variance before proceeding with their claims in circuit
court.
II. Relief
As a final matter, we note that plaintiffs urge this court to reach
the merits of their Conscience Act claim and declare subsection (j)
void and facially invalid. We have previously acknowledged that
plaintiffs’ claims are legal in nature, but we do not believe that it
would be consistent with our role as a reviewing court to rule on the
merits of the Conscience Act where defendants, as of yet, have not
been required to answer the allegations of plaintiffs’ complaint in the
trial court.
Additionally, we note that plaintiffs filed a motion for a
temporary restraining order, which the trial court denied on
justiciability grounds after a hearing. Plaintiffs did not file an
interlocutory appeal from that order under Supreme Court Rules
307(a) or (d) (188 Ill. 2d Rs. 307(a), (d)). Thus, we do not consider
its propriety here. Plaintiffs also moved for a preliminary injunction,
but the trial court did not hold a hearing on this motion or rule upon
it because the court granted defendants’ motion to dismiss with
-24-
prejudice based on justiciability issues. As our discussion above
indicates, we believe that plaintiffs’ claims are ripe and that plaintiffs
were not required to exhaust administrative remedies. The appropriate
remedy is to reverse the judgments of the appellate and circuit courts
and to remand the cause for further proceedings, including a hearing
on plaintiffs’ motion for a preliminary injunction and to allow further
amendments to the plaintiffs’ complaint.
CONCLUSION
For the foregoing reasons, we reverse the judgments of the
appellate and circuit courts and remand the cause to the circuit court
for further proceedings consistent with this opinion.
Judgments reversed;
cause remanded.
JUSTICE FREEMAN, dissenting:
The majority reverses the appellate court, holding that plaintiffs’
challenge to the administrative rule requiring pharmacies to dispense
prescription contraceptives (68 Ill. Adm. Code §1330.91(j) (2005))
is ripe for judicial review. The majority also holds that, even though
plaintiffs undisputedly failed to seek a variance excusing their
compliance with the rule, this did not constitute a failure to exhaust
administrative remedies. Alternatively, the majority concludes that
even if an exhaustion analysis applies, plaintiffs are exempt from the
requirement under various exceptions.
I disagree with the majority regarding the exhaustion issue,
which is dispositive. Plaintiffs’ failure to seek a variance from the
Director5 pursuant to section 11 of the Pharmacy Practice Act of 1987
5
The Illinois Administrative Code defines “Director” as “the Director of
the Division of Professional Regulation with the authority delegated by the
-25-
(225 ILCS 85/11 (West 2004))6 constituted a failure to exhaust
administrative remedies, and plaintiffs were not exempt from the
exhaustion requirement. Plaintiffs’ complaint was properly dismissed
by the circuit court. I write separately to explain why the exceptions
to the exhaustion doctrine asserted by the majority do not apply.
“Generally, a party may not seek judicial relief from an
administrative action unless the party has exhausted all available
administrative remedies.” Arvia v. Madigan, 209 Ill. 2d 520, 531
(2004). An exception to this doctrine provides that a plaintiff who
attacks a statute or rule as unconstitutional on its face need not
exhaust administrative remedies. Arvia, 209 Ill. 2d at 532. In the case
at bar, the majority concludes that plaintiffs’ claim is a facial rather
than an as-applied challenge, and holds that the exception for facial
challenges therefore applies. Citing Napleton v. Village of Hinsdale,
229 Ill. 2d 296, 306 (2008), the majority explains the difference
between facial and as-applied challenges in terms of the differing
results if the plaintiff prevails. “The difference between an as-applied
and a facial challenge is that if a plaintiff prevails in an as-applied
claim, he may enjoin the objectionable enforcement of a statute only
against himself, while a successful facial challenge voids [the]
enactment in its entirety and in all applications.” Slip op. at 19. The
majority continues: “Under plaintiffs’ theory, if they prevail, the
offending provisions of subsection (j) would be declared void
completely, not just as applied to plaintiffs. [Plaintiffs’ challenge] is
therefore a facial challenge.” Slip op. at 19.
The majority fails to mention Napleton’s additional, somewhat
different description of the distinction between facial and as-applied
Secretary [of the Department of Financial and Professional Regulation].”
68 Ill. Adm. Code §1330.5 (amended at 30 Ill. Reg. 16930, eff. October 12,
2006).
6
The Pharmacy Practice Act of 1987 was scheduled to be repealed on
January 1, 2008. However, on October 29, 2007, it was amended and
renamed the Pharmacy Practice Act, and the repeal date was changed to
January 1, 2018. Pub. Act 95–689, eff. October 29, 2007 (amending 225
ILCS 85/1 et seq. (West 2006)).
-26-
challenges when the challenge is first presented, rather than when a
plaintiff prevails. With regard to facial challenges, Napleton explains:
“A facial challenge to the constitutionality of a legislative
enactment is the most difficult challenge to mount
successfully [citation] because an enactment is facially
invalid only if no set of circumstances exists under which it
would be valid. [Citation.] The fact that the enactment could
be found unconstitutional under some set of circumstances
does not establish its facial invalidity.” Napleton, 229 Ill. 2d
at 305-06.
Accord People v. Greco, 204 Ill. 2d 400, 407 (2003). By contrast, “in
an ‘as applied’ challenge a plaintiff protests against how an enactment
was applied in the particular context in which the plaintiff acted or
proposed to act, and the facts surrounding the plaintiff’s particular
circumstances become relevant.” Napleton, 229 Ill. 2d at 306.
In the case at bar, plaintiffs’ challenge to subsection (j) does not
present a “facial” attack. It is premised on religious objections to the
rule’s requirements. However, plaintiffs do not–and cannot–allege
that every retail pharmacy has such religious objections. Nevertheless,
every retail pharmacy must comply with subsection (j). Plaintiffs fail
to allege there is no set of circumstances under which subsection (j)
would be valid. See, e.g., Greco, 204 Ill. 2d at 407. Even if plaintiffs’
challenge were successful, the rule would not be void “in its entirety
and in all applications” (Napleton, 229 Ill. 2d at 306). In this instance,
plaintiffs’ claim is an “as applied” challenge rather than a facial
attack. Accordingly, the exception to the exhaustion doctrine for
facial challenges does not apply here.
Under a second exception to the exhaustion doctrine, a party is
not required to exhaust administrative remedies where it would be
patently futile to do so. Beahringer v. Page, 204 Ill. 2d 363, 378
(2003); Castaneda v. Illinois Human Rights Comm’n, 132 Ill. 2d 304,
309 (1989). The plaintiff bears the heavy burden of establishing that
the futility exception applies to his or her case. See, e.g., Cullen v.
Town Council, 850 A.2d 900, 906 (R.I. 2004); Coleman v. Newburgh
Enlarged City School District, 319 F. Supp. 2d 446, 450 (S.D.N.Y.
2004); Rann v. Chao, 154 F. Supp. 2d 61, 65 (D.D.C. 2001).
-27-
In the case at bar, the majority concludes that this exception
applies as well, holding that it would be futile for plaintiffs to seek a
variance. The majority points to public statements by the Governor
and other defendants allegedly indicating that the purpose of the rule
is to coerce pharmacists with religious objections into dispensing
emergency contraceptives. The majority states: “[I]t can be concluded
that granting variances in these kinds of cases would eviscerate the
whole purpose for the rule. Under such circumstances, exhaustion is
not required.” Slip op. at 21. In reaching this conclusion, the majority
notes defendants’ contention that the main target of the rule is not
pharmacists with religious objections to emergency contraception, but
rather large pharmacies that do not have such religious objections.
The majority also notes defendants’ argument that “they are trying to
prevent situations where an individual pharmacist with a religious
objection is the only one on duty when a Plan B prescription [is
presented].” Slip op. at 21. However, the majority dismisses these
contentions, asserting that defendants should have “more narrowly
tailor[ed] the rule to provide an exemption for pharmacies that hold
religious objections.” Slip op. at 21-22.
In focusing on public statements to determine the rule’s purpose,
the majority is forced to rely on questionable sources such as press
releases. The majority should have looked to more appropriate
sources such as the rule itself, as amended in April 2008, and the
manner in which it is enforced.
The amended version of the rule (see 32 Ill. Reg. 7116, eff. April
16, 2008, amending 68 Ill. Adm. Code §1330.91(j)), which the
majority describes in the background section of its opinion, retains
the essential features of the previous version of the rule but adds what
the majority describes as “several, more onerous provisions pertaining
specifically to ‘emergency contraception.’ ” Slip op. at 9. Chief
among the changes pertaining to emergency contraception is a new
dispensing procedure called “remote medication order processing”
(RMOP). Notwithstanding the majority’s description of the
emergency-contraception changes as “more onerous,” RMOP, which
takes up the lion’s share of the amendment, actually supports
defendants’ claims that (1) the target of the rule is not pharmacists
with religious objections to emergency contraception, and (2)
defendants are attempting to prevent situations where an individual
-28-
pharmacist with a religious objection is the only one on duty when a
Plan B prescription is presented. Under RMOP, if a pharmacist
objects to dispensing emergency contraception and there is no
nonobjecting pharmacist present at the dispensing pharmacy, a
nonobjecting pharmacist at a different (remote) location may
authorize the dispensing of the drug by a nonpharmacist employee at
the dispensing pharmacy. 68 Ill. Adm. Code §§1330.91(j)(3)(A),
(j)(3)(B) (2008). In addition, a retail pharmacy “is responsible for
ensuring either that there is a non-objecting pharmacist scheduled at
all times the pharmacy is open, or that there is a licensed pharmacist
available to perform RMOP for emergency contraception at all times
the pharmacy is open and no non-objecting pharmacist is available at
the pharmacy.” 68 Ill. Adm. Code §1330.91(j)(4) (2008).
With regard to the manner in which the rule is enforced,
plaintiffs specifically allege only three enforcement actions charging
violations of subsection (j). Similar to the amended version of the
rule, these three complaints provide support for defendants’
contention that the rule is aimed at large pharmacies that do not have
religious objections to emergency contraceptives, rather than
pharmacies that hold such objections. Two of the three complaints
were filed against Walgreen pharmacies, and the third was filed
against an Osco pharmacy. According to defendants, these
enforcement actions “involved large ‘chain’ pharmacies that (unlike
plaintiffs) do stock emergency contraceptives and do not have a
corporate policy of religious refusals to dispense. In those
administrative complaints, the pharmacies allegedly failed to ensure
that their employees complied with store policy and instead allowed
individual pharmacists to obstruct customers’ access to
contraceptives.”
In the case at bar, as previously noted, the majority’s conclusion
that the futility exception applies here is based, in large part, on
public statements by the Governor and other defendants allegedly
indicating that the purpose of the rule is to coerce pharmacists with
religious objections into dispensing emergency contraceptives.
Assuming, arguendo, that it is proper to base a determination of the
rule’s purpose on such public statements, rather than the rule itself
and its manner of enforcement, I note that an examination of these
public statements raises serious questions as to whether the purpose
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of the rule actually was, as the majority asserts, to coerce pharmacists
with religious objections into dispensing emergency contraceptives.
The majority refers, for example, to public statements by
defendants that “they will vigorously prosecute pharmacists with
religious objections.” Slip op. at 22. The apparent source for this
reference is a September 15, 2005, press release from the Department
of Financial and Professional Regulation (Department), titled “Three
Complaints Filed Against Pharmacies for Failure to Dispense
Contraceptives.” While “prosecute” does not appear in the release,
the term “vigorously enforcing” does appear in the subheadline,
which states: “IDFPR [Department] Vigorously Enforcing Gov.
Blagojevich’s Birth Control Rules.” However, the vigorous
enforcement referred to in the subheadline applies to pharmacies, not
pharmacists. While the release, in describing two of the three
complaints, refers to pharmacists refusing to fill prescriptions, the
release nevertheless makes clear that the Department’s enforcement
actions are against pharmacies. The headline, for example, expressly
refers to “Complaints Filed Against Pharmacies.” The first paragraph
of the release supports the headline, noting that the complaints were
filed against “Illinois pharmacies” and explaining that the rule at issue
clarified “the responsibilities of licensed retail pharmacies to fill
prescriptions for all FDA approved contraceptives if the drug store
dispenses birth control medications.”
In sum, the majority’s unequivocal stating of the purpose is not
correct. At a minimum, it is questionable whether the purpose of the
rule is to coerce pharmacists with moral objections into dispensing
emergency contraceptives, or whether, instead, the rule is aimed at
large pharmacies that do not have moral objections to dispensing
emergency contraception, as defendants contend. Under the latter
purpose, it would not be futile for plaintiffs to seek a variance from
the Director. Granting a variance in this situation would not
“eviscerate the whole purpose for the rule.”
Because, at the very least, questions remain as to the rule’s
purpose, which in turn affects whether the variance procedure is
futile, plaintiffs have failed to meet their high burden of establishing
that the futility exception applies to them.
In support of its conclusion that the futility exception does apply
here, the majority relies on Canel v. Topinka, 212 Ill. 2d 311 (2004),
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which held that the plaintiff was exempted from exhausting
administrative remedies because to do so would have been futile. In
Canel, 288 shares of stock belonging to the plaintiff had been turned
over to the state as property presumed abandoned. The stock, which
was unliquidated, ultimately was returned to the plaintiff, but the state
retained the dividends which had accrued on the stock during the time
it was held by the state. The plaintiff filed suit in circuit court
seeking, inter alia, the return of the dividends on the unliquidated
stock. The plaintiff did not comply with the administrative procedure
that required him to specifically request a hearing with the Treasurer
or seek judicial review of the final administrative decision of the
Treasurer. The plaintiff thus failed to exhaust his administrative
remedies.
In concluding that the plaintiff was exempt from the exhaustion
requirement under the futility exception, Canel stated:
“[T]he pleadings reveal that it would have been futile for
plaintiff, or any other similarly situated claimant for that
matter, to exhaust administrative remedies with respect to
asserting a claim for dividends on stock held by defendants
pursuant to the Act because the defendants’ position in these
types of cases is that the Act transforms into State property
dividends earned on shares of stock presumed abandoned
under the Act. Defendants argue that because of that fact
they need not return dividends to the previous owner.
Section 15 [of the Act], however, clearly contains an
exception that provides that claimants may in fact be entitled
to dividends on unliquidated stock. Given that defendants, as
alleged by plaintiff, have never chosen to exercise their
discretion in favor of a claimant–despite the permissive
language of the statute–we hold that exhaustion, under these
circumstances, was unnecessary ***.” (Emphasis in
original.) Canel, 212 Ill. 2d at 322.
Canel is inapposite to the case at bar. In Canel, the defendants’
position was that “the Act transforms into state property dividends
earned on shares of stock presumed abandoned.” Canel, 212 Ill. 2d at
322. The defendants argued that, because the dividends were so
transformed, they need not be returned to the previous owner. In the
instant case, by contrast, defendants argue that plaintiffs should seek
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a variance from the rule’s requirements. Indeed, as the majority itself
notes:
“Defendants also suggest that plaintiffs could get a
variance if they could show (1) that they were ‘religious
institutions,’ i.e., have true religious objections, and (2) that
there were other pharmacies within a certain number of
blocks that would be able to fill such prescriptions. Then,
defendants argue, the statutory standard for a variance could
be met, which requires a showing that no one will be hurt
and that application of the rule in this particular case would
be burdensome and unreasonable.” Slip op. at 22.
In Canel, it would have been patently useless for the plaintiff to
exhaust administrative remedies, given the defendants’ expressly
stated position. That is not the situation in the case at bar. The
majority’s reliance on Canel in the instant case is misplaced.
The majority rejects Beahringer v. Page, 204 Ill. 2d 363 (2003),
as support for defendants’ argument that the futility exception does
not apply in this case. The majority asserts that Beahringer is
distinguishable from the case at bar. Notwithstanding the differences
between the two cases–indeed, because of one of them–Beahringer
is highly relevant to the futility question here.
In Beahringer, the plaintiff inmate filed a grievance over the
confiscation of his art supplies by the Illinois Department of
Corrections (Department). Under the relevant administrative code
provision, a decision on the grievance was required within 45 days
“whenever possible.” The plaintiff waited 60 days without receiving
a decision or a response, and then filed a complaint for declaratory
and injunctive relief. In his complaint, the plaintiff alleged, among
other things, that the Department’s grievance procedure was futile in
his case because it was the warden who initially approved the
confiscation of his art supplies, and grievances filed against warden-
approved actions “historically have failed.” Beahringer, 204 Ill. 2d at
378.
Beahringer held that the plaintiff failed to exhaust his
administrative remedies, and the futility exception did not apply. The
court stated:
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“Illinois recognizes a limited ‘futility’ exception to the
exhaustion of administrative remedies doctrine. A party will
not be required to exhaust his or her administrative remedies
when it would be patently useless to do so. [Citation.]
‘However, the fact that there are clear indications that the
agency may or will rule adversely is generally inadequate to
terminate the administrative process or to avoid the
exhaustion requirement.’ ” Beahringer, 204 Ill. 2d at 378.
In Beahringer, the futility exception was held not to apply even
though the plaintiff alleged that grievances filed against warden-
approved actions historically had failed. In the case at bar, by
contrast, there is no indication that requests for section 11 variances
have historically failed. Indeed, there is no indication that the Director
ever rejected a variance request from a party or parties, situated
similarly to plaintiffs, who refused on moral grounds to dispense
emergency contraceptives. Beahringer is clearly relevant in
determining whether the futility exception applies in the instant case.
I would hold that neither this exception nor the exception for
facial challenges applies. The court’s conclusions to the contrary
ignore the important policy considerations underlying the exhaustion
doctrine, which include: (1) allowing the agency to fully develop and
consider the facts of the cause and to utilize its expertise; (2)
protecting agency processes from impairment by avoidable
interruptions; (3) giving the aggrieved party the opportunity to
succeed before the agency; and (4) allowing the agency to correct its
own errors, thus conserving valuable judicial resources. Beahringer,
204 Ill. 2d at 375. Moreover, this court has repeatedly stated that
cases should be decided on nonconstitutional grounds whenever
possible, and constitutional issues should be reached only as a last
resort. In re E.H., 224 Ill. 2d 172, 178 (2006). The doctrine of
exhaustion of administrative remedies furthers this consideration as
well.
If plaintiffs in the case at bar had sought a variance, this would
have allowed the Director, at a minimum, “to fully develop and
consider the facts of the cause and to utilize [his] expertise.”
Beahringer, 204 Ill. 2d at 375. The Director could have determined,
for example, whether the application of the rule to plaintiffs would
have been unreasonable or unnecessarily burdensome, and whether
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granting the variance would have resulted in injury to any party. 225
ILCS 85/11(c) (West 2004); 68 Ill. Adm. Code §1330.110(a) (2005).
In addition, plaintiffs would have had an opportunity to succeed
before the Director, and thus avoid the need for judicial involvement.
I acknowledge that the question posed by plaintiffs’
appeal–whether subsection (j) may validly require the dispensation of
emergency contraceptives in the face of religious objections–is an
interesting one. However, in view of the important policy reasons
supporting the exhaustion doctrine, including our long-standing
policy that constitutional issues should be reached only where
necessary to decide the case, it is improper for this court to address
the subsection (j) question before the Director is given an opportunity
to consider it via the section 11 variance procedure. I note, in
addition, that plaintiffs are not without a remedy. Under section 11,
they may seek a variance excusing their compliance with subsection
(j). If unsuccessful, they may then seek judicial relief.
I would affirm the judgment of the appellate court upholding the
circuit court’s dismissal of plaintiffs’ complaint. I respectfully
dissent.
JUSTICE BURKE joins in this dissent.
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