Consiglio v. Department of Financial & Professional Regulation , 988 N.E.2d 1020 ( 2013 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Consiglio v. Department of Financial & Professional Regulation, 2013 IL App (1st) 121142
Appellate Court ANGELO CONSIGLIO, M.D., Plaintiff-Appellant, v. THE
Caption DEPARTMENT OF FINANCIAL AND PROFESSIONAL
REGULATION; BRENT E. ADAMS, Secretary of the Department of
Financial and Professional Regulation; and JAY STEWART, Director of
the Division of Professional Regulation of the Department of Financial
and Professional Regulation, Defendants-Appellees.–BRADLEY
HIROSHI HAYASHI, D.C., Plaintiff-Appellant, v. THE DEPARTMENT
OF FINANCIAL AND PROFESSIONAL REGULATION; BRENT E.
ADAMS, Secretary of the Department of Financial and Professional
Regulation; and JAY STEWART, Director of the Division of
Professional Regulation of the Department of Financial and Professional
Regulation, Defendants-Appellees.–MOHAMMED KALLEELUDDIN,
M.D., Plaintiff-Appellant, v. THE DEPARTMENT OF FINANCIAL
AND PROFESSIONAL REGULATION; and JAY STEWART, Director
of the Division of Professional Regulation of the Department of Financial
and Professional Regulation, Defendants-Appellees.–NERCY JAFARI,
M.D., Plaintiff-Appellant, v. ILLINOIS DEPARTMENT OF
FINANCIAL AND PROFESSIONAL REGULATION; and JAY
STEWART, Director of the Division of the Professional Regulation of
the Department of Financial and Professional Regulation, Defendants-
Appellees.
District & No. First District, First Division
Docket Nos. 1-12-1142, 1-12-1143, 1-12-1197, 1-12-1242 cons.
Filed April 8, 2013
Rehearing denied May 2, 2013
Rehearing denied May 3, 2013
Held In a consolidated appeal by health care workers whose licenses were
(Note: This syllabus permanently revoked without a hearing pursuant to the Health Care
constitutes no part of Worker Self-Referral Act, based on conduct including convictions or
the opinion of the court sentences requiring registration as sex offenders, the appellate court
but has been prepared affirmed the dismissal of plaintiffs’ complaints and rejected their
by the Reporter of contentions that the Act, inter alia, was retroactive and infringed on their
Decisions for the right to substantive due process, violated the protection against double
convenience of the jeopardy and ex post facto laws, and offended separation of powers
reader.)
principles, and that prior disciplinary decisions against plaintiffs
constituted a res judicata bar to the revocations.
Decision Under Appeal from the Circuit Court of Cook County, Nos. 11-CH-28998, 11-
Review CH-29295, 11-CH-29367, 11-CH-41721; the Hon. Franklin Valderrama,
Judge, presiding.
Judgment Affirmed.
Counsel on Bruno & Weiner, of Chicago (Edward F. Bruno and Joseph E. Bruno, of
Appeal counsel), for appellants.
Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
Solicitor General, and Nadine J. Wichern, Assistant Attorney General, of
counsel), for appellees.
Panel PRESIDING JUSTICE HOFFMAN delivered the judgment of the court,
with opinion.
Justices Rochford and Delort concurred in the judgment and opinion.
OPINION
¶1 At issue in these consolidated appeals is the constitutionality of section 2105-165 of the
Illinois Department of Professional Regulation Law (20 ILCS 2105/2105-165 (West Supp.
2011)) (hereinafter referred to as the Act) as applied to the health-care-worker plaintiffs.
Subsection (a) of the Act provides that the license of a health care worker as defined in the
Health Care Worker Self-Referral Act (225 ILCS 47/1 et seq. (West 2010)) who: “(1) has
been convicted of a criminal act that requires registration under the Sex Offender
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Registration Act; (2) has been convicted of a criminal battery against any patient in the
course of patient care or treatment, including any offense based on sexual conduct or sexual
penetration; (3) has been convicted of a forcible felony; or (4) who is required as part of a
criminal sentence to register under the Sex Offender Registration Act *** shall by operation
of law be permanently revoked without hearing.” 20 ILCS 2105/2105-165(a) (West Supp.
2011). The Act became effective on August 20, 2011. Thereafter, and pursuant to the Act,
the licenses issued to the plaintiffs to provide health services in Illinois were permanently
revoked by the Department of Financial and Professional Regulation (Department) by reason
of their having been previously convicted of batteries against patients.
¶2 The facts giving rise to these consolidated appeals are relatively uncomplicated. Each of
the plaintiffs was licensed by the Department as a health care worker. Specifically, Angelo
Consiglio, M.D., Nercy Jafari, M.D., and Mohammed Kalleeluddin, M.D., were licensed
under the Medical Practice Act of 1987 (Medical Practice Act) (225 ILCS 60/1 et seq. (West
2010)) as physicians licensed to practice medicine in all of its branches. Bradley Hiroshi
Hayashi, D.C., was licensed under the Medical Practice Act as a chiropractic physician,
licensed to treat human ailments without the use of drugs and without operative surgery.
Subsequent to being licensed, each of the plaintiffs was convicted of battery or abuse against
a patient in the course of care or treatment.
¶3 In 2000, Kalleeluddin was convicted of four counts of misdemeanor battery upon female
patients. As a consequence of the allegations of misconduct that led to his convictions, the
Department suspended Kalleeluddin’s license to practice medicine on February 19, 1998.
Kalleeluddin’s medical license remained suspended until December 18, 2000, when the
Department issued an order restoring it subject to a term of indefinite probation. On
November 9, 2007, following an administrative hearing, the Department entered an order
terminating Kalleeluddin’s probation and restoring his medical license, unencumbered.
¶4 In August 2001, Jafari was convicted of misdemeanor criminal sexual abuse for
misconduct involving a female patient. He was sentenced to 24 months’ probation and was
required to register as a sex offender for 10 years after the date of his conviction. In 2003,
the Department determined that Jafari’s medical license did not need to be suspended,
revoked, or otherwise limited. In 2010, the Department revisited Jafari’s fitness in connection
with the operation of his surgical center, and it determined that no action was required.
Jafari’s duty to register as a sex offender expired four days after the Act took effect.
¶5 On January 26, 2005, Consiglio pled guilty to misdemeanor battery upon a female patient
in his medical office on January 5, 2004. As a result of his conviction, the Department
summarily suspended Consiglio’s medical license on February 5, 2005. On May 24, 2005,
the Department entered a consent order, under which Consiglio and the Department agreed
that his medical license would remain suspended until May 31, 2005, and that thereafter, and
until further order, his license would be on an indefinite probation status, subject to certain
conditions set forth in the consent order. On August 10, 2006, the Department entered
another consent order, finding that Consiglio had fully complied with the terms and
conditions of his probation, and restoring his license to practice medicine, unencumbered.
¶6 On May 21, 2007, Hayashi was convicted of misdemeanor battery based upon the
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testimony of a patient that he had touched her inappropriately during the course of treatment.
On November 24, 2008, the Department entered a consent order, under which Hayashi and
the Department agreed that his license to practice as a chiropractic physician would be
suspended for a period of 30 days and thereafter reinstated on a probationary basis for a
minimum of 3 years, subject to the terms and conditions set forth in the order.
¶7 Following the revocation of their licenses, the plaintiffs filed separate actions in the
circuit court of Cook County, seeking, inter alia, (1) a judicial declaration that the Act can
be applied only prospectively as the result of convictions that occur after its effective date;
and (2) injunctive relief enjoining the Department from revoking their licenses to provide
health services as a consequence of any conviction occurring prior to August 20, 2011, the
Act’s effective date. The Department and Jay Stewart, the Director of its Division of
Professional Regulation, filed motions to dismiss the plaintiffs’ actions pursuant to section
2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2010)), which the
circuit court granted. Thereafter, the plaintiffs each filed timely notices of appeal, and their
appeals have been consolidated for purposes of judicial economy.
¶8 As the plaintiffs’ complaints in these consolidated appeals were dismissed in response
to the defendants’ motions brought pursuant to section 2-615 of the Code, the only question
before this court is whether the dismissed counts state causes of action upon which relief can
be granted. Oliveira v. Amoco Oil Co., 201 Ill. 2d 134, 147 (2002). “The legal sufficiency
of a complaint alleging that a statute or ordinance is unconstitutional may be raised by way
of a section 2-615 motion.” DeWoskin v. Loew’s Chicago Cinema, Inc., 306 Ill. App. 3d 504,
513 (1999). The issues presented are of law; consequently, our review is de novo,
independent of the reasoning of the trial court. T&S Signs, Inc. v. Village of Wadsworth, 261
Ill. App. 3d 1080, 1084 (1994).
¶9 In ruling on these appeals, we have taken as true all well-pleaded facts in the complaints
as well as all reasonable inferences that may be drawn from those facts, and we have
construed all the allegations in the light most favorable to the plaintiffs. Marshall v. Burger
King Corp., 222 Ill. 2d 422, 429 (2006). However, conclusions of law or fact contained
within the challenged complaints, unsupported by specific factual allegations, were not taken
as true. Ziemba v. Mierzwa, 142 Ill. 2d 42, 47 (1991).
¶ 10 The plaintiffs have raised a number of arguments in support of their respective appeals.
Some of the arguments are common to all of their briefs, whereas some are advanced by
fewer than all of the plaintiffs. We will discuss all of the arguments raised without specifying
which plaintiff or plaintiffs raised them. The plaintiffs argue that, as applied to them, the Act
(1) is retroactive in a manner that offends the constitutional guarantee of substantive due
process; (2) infringes on their constitutional rights to procedural due process; (3) violates
their constitutional protection against double jeopardy; (4) violates the constitutional
prohibition against ex post facto laws; (5) offends separation of powers principles by
abridging the Department’s discretionary authority and the judiciary’s power of review; (6)
impairs the obligations of contracts between the Department and the plaintiffs, in violation
of the contracts clause of the Illinois Constitution; (7) imposes an excessive penalty in
violation of the proportionate penalties clause of the Illinois Constitution; (8) cannot be
enforced, because the Department’s prior disciplinary decisions create a res judicata bar to
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new discipline; and (9) unfairly deprives them of vested limitations and repose defenses. For
the reasons that follow, we reject all of these arguments.
¶ 11 The plaintiffs first argue that the plain language of the Act does not reflect an intent that
it apply to health care workers convicted of a triggering event prior to its enactment. Further,
even if the legislature so intended, the plaintiffs argue that the due process clauses of the
federal and state constitutions bar such retroactive changes in the law. U.S. Const., amend.
XIV; Ill. Const. 1970, art. I, § 2; Lazenby v. Mark’s Construction, Inc., 236 Ill. 2d 83, 98
(2010). We disagree on both points.
¶ 12 Our first task is to determine whether the legislature intended that the Act apply to
triggering events occurring before its effective date. In construing a statute, our goal is to
ascertain and give effect to the legislature’s intent. Chicago Teachers Union, Local No. 1 v.
Board of Education of the City of Chicago, 2012 IL 112566, ¶ 15. The most reliable way to
ascertain the legislative intent is to examine the language of the statute, giving its words their
plain and ordinary meaning. Id.
¶ 13 The Act provides that, when a licensed health care worker “has been convicted” of one
triggering offense, his or her license “shall by operation of law be permanently revoked
without a hearing.” Although the plaintiffs argue that the Act contains no express statement
that it applies to individuals who have been convicted of a triggering event prior to its
enactment, their argument is belied by the clear and unambiguous language of the Act. The
phrase “has been” is in the present perfect tense, which is used to refer to a past event that
has present consequences. See In re Gwynne P., 215 Ill. 2d 340, 357-58 (2005) (the language
“ ‘[h]as prevented’ is in the present perfect tense, a verb form used to denote action
beginning in the past and continuing to the present”). Thus, the Act clearly applies to the
plaintiffs’ convictions, even though those convictions predate the Act.
¶ 14 The next question to be resolved is whether the Act operates retroactively in a way that
violates their rights to substantive due process. To determine whether a statute operates
retroactively for purposes of substantive due process, our supreme court has adopted the
analysis set forth in Landgraf v. USI Film Products, 511 U.S. 244 (1994). Commonwealth
Edison Co. v. Will County Collector, 196 Ill. 2d 27, 39 (2001). Under Landgraf, if the
legislature has clearly indicated the temporal reach of a statute, then, absent a constitutional
prohibition, that expression of legislative intent must be given effect. Id. at 38. When the
legislature has not indicated the temporal reach, then the court must determine whether
applying the statute would have a retroactive impact; meaning, “ ‘whether it would impair
rights a party possessed when he acted, increase a party’s liability for past conduct, or impose
new duties with respect to transactions already completed.’ ” Id. (quoting Landgraf, 511 U.S.
at 280). “If there would be no retroactive impact, as that term is defined by the court, then
the amended law may be applied.” Id. If the amendment has a retroactive impact, then the
court must presume that the legislature did not intend that it be so applied. Id.
¶ 15 In their arguments, the plaintiffs somewhat conflate the issues of whether the Act applies
to convictions that predate its enactment and whether the Act operates retroactively. The fact
that application of the Act’s mandatory revocation provisions may depend upon criminal acts
which predate its effective date does not necessarily render it retroactive in nature. Landgraf,
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511 U.S. at 269-70; Cox v. Hart, 260 U.S. 427, 435 (1922).
¶ 16 Indeed, although the Act may draw upon antecedent convictions for its operation, it does
not impose new legal consequences to the plaintiffs’ convictions or their right to practice
medicine in the years after their convictions and prior to its effective date. “Rather, the
statute looks prospectively at [their] right to continue practicing medicine in the future.”
Bhalerao v. Illinois Department of Financial & Professional Regulations, 834 F. Supp. 2d
775, 783 (N.D. Ill. 2011). As the court held in Bhalerao, the Act creates a present and future
effect on present and future conduct, and has no effect on the plaintiffs’ rights to practice
medicine in the past. Id. at 783-84; see also Wineblad v. Department of Registration &
Education, 161 Ill. App. 3d 827, 830 (1987) (finding the State may change the requirements
for the issuance or retention of a professional license so long as the requirement bears some
reasonable relationship to the legitimate interest of public health and safety); United States
v. Leach, 639 F.3d 769, 773 (7th Cir. 2011) (finding new Sex Offender Registration and
Notification Act (18 U.S.C. § 2250(a) (2006)) was not retroactive merely because it applied
to convictions that predated its enactment; rather, the law created “new, prospective legal
obligations based on the person’s prior history”). In sum, the Act affects only the plaintiffs’
rights to practice as health care workers subsequent to its enactment, and it is not retroactive
in a manner that triggers the substantive due process protections described in Landgraf.1
¶ 17 Next, the plaintiffs argue that the Act may not be given effect where doing so violates
their procedural due process rights. Procedural due process delineates the procedures that
must be followed before depriving a person of life, liberty, or property. Fischetti v. Village
of Schaumburg, 2012 IL App (1st) 111008, ¶ 15. The plaintiffs argue that, because the Act
requires revocation of their licenses without a hearing, it denies them their rights to
procedural due process. Again, we disagree.
¶ 18 Due process is a flexible concept, and the procedural safeguards it requires may not be
the same in all situations. People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 201 (2009).
Procedural due process does not necessarily require a proceeding that is akin to a judicial
proceeding; nor does it require a hearing in every instance a government action impairs a
private interest. Callahan v. Sledge, 2012 IL App (4th) 110819, ¶ 27. Courts should consider
the following factors in evaluating procedural due process challenges: (1) the private interest
that will be affected by the official action; (2) the risk of an erroneous deprivation of such
interest through the procedures used, and the value, if any, of any additional or substitute
procedural safeguards; and (3) the government’s interest, including the fiscal and
administrative burdens that the additional or substitute procedural safeguards would entail.
Konetski, 233 Ill. 2d at 201.
¶ 19 Under the first factor, a professional license constitutes a property interest. See Smith v.
Department of Registration & Education, 412 Ill. 332, 340-41 (1952) (“It has been
universally held that a license to practice medicine is a ‘property right,’ within the meaning
1
Because we find that the Act is not retroactive in nature, we reject the plaintiffs’ arguments
that the savings clauses of the Statute on Statutes (5 ILCS 70/4 (West 2010)) and the Civil
Administrative Code of Illinois (20 ILCS 5/5-95 (West 2010)) bar the Act’s application to them.
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of the constitutional guarantees of due process of law.”). Under the second factor, the risk
that a license may be erroneously revoked under the Act is low, because the Act operates
only upon a conviction, the existence of which is a matter of public record which can be
established without a fact-finding hearing. As for the third factor, there is a strong
government interest in protecting the public from health care workers with past criminal
convictions. Carter-Shields v. Alton Health Institute, 201 Ill. 2d 441, 463 (2002); see People
ex rel. Eppinga v. Edgar, 112 Ill. 2d 101, 108-10 (1986) (finding a hearing not required in
license revocation of driver charged with drunk driving where the risk of erroneous
revocation was low and the government interest in highway safety was high). Further, a
hearing requirement would impose additional burdens without any corresponding benefit.
Therefore, as in Eppinga, due process does not mandate a hearing under the circumstances
present in the instant cases.
¶ 20 Furthermore, the plaintiffs acknowledge that they were provided notice that their licenses
were being revoked in accordance with the Act, and that they could challenge the revocation
in writing within 20 days pursuant to section 2105-165(e) (20 ILCS 2105/2105-165(e) (West
Supp. 2011)), which provides that a licensee may challenge a revocation by raising a defense
disputing the existence of a triggering event. The plaintiffs concede they were convicted of
the offenses triggering revocation under the Act and that they do not fall within any
recognized exception; thus, a hearing would not benefit them.
¶ 21 The plaintiffs, nevertheless, claim that the Act interferes with their right to a hearing
under section 22 of the Medical Practice Act (225 ILCS 60/22 (West 2010)), which provides
for a hearing process to determine one’s fitness to practice medicine. However, the plaintiffs’
licenses were not revoked pursuant to section 22 of the Medical Practice Act. Their licenses
were revoked pursuant to the Act, and the Act does not adopt any provision of the Medical
Practice Act. The Act explicitly provides that a license shall be revoked “notwithstanding any
other provision of law to the contrary.” 20 ILCS 2105/2105-165(a) (West Supp. 2011).
Accordingly, we reject the plaintiffs’ due process challenges to the Act, as well as their
argument that they were entitled to a hearing by statute.
¶ 22 Next, the plaintiffs assert that the revocation of their licenses violates the constitutional
prohibition against double jeopardy, because the Act imposes successive punishment for the
same offenses. We reject the argument because we conclude that the license revocations do
not constitute punishment.
¶ 23 The double jeopardy clauses in our federal and state constitutions bar multiple criminal
punishments for one offense. U.S. Const., amend. V; Ill. Const. 1970, art. I, § 10; Hudson
v. United States, 522 U.S. 93, 99 (1997); People v. Lavariega, 175 Ill. 2d 153, 155 (1997);
see In re P.S., 175 Ill. 2d 79, 91 (1997) (Illinois construes its double jeopardy clause in
lockstep with that of the federal constitution). Generally, a civil penalty is not considered a
punishment for the purposes of double jeopardy. Hudson, 522 U.S. at 99. However, if a civil
penalty is so punitive in nature or effect that it is the “functional equivalent” of a criminal
punishment, the penalty may violate the constitutional prohibition against double jeopardy.
Wilson v. Department of Revenue, 169 Ill. 2d 306, 312-13 (1996). When determining whether
a civil penalty is actually punitive in nature, a court must look first to the intent of the
legislature. Lavariega, 175 Ill. 2d at 155-56. If the legislature’s intent was to create a civil
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penalty, but the statute’s effects are clearly punitive, then the penalty constitutes a criminal
punishment and can be barred by the prohibition against double jeopardy. Id.
¶ 24 To determine whether a civil penalty is punitive for double jeopardy purposes, we apply
a seven-factor analysis that asks:
“(1) whether the sanction involves an affirmative disability or restraint; (2) whether it has
historically been regarded as a punishment; (3) whether it comes into play only on a
finding of scienter; (4) whether its operation will promote the traditional aims of
punishment, retribution, and deterrence; (5) whether the behavior to which it applies is
already a crime; (6) whether an alternative purpose to which it may rationally be
connected is assignable for it; and (7) whether it appears excessive in relation to the
alternative purpose assigned.” Bhalerao, 834 F. Supp. 2d at 788 (citing Kennedy v.
Mendoza-Martinez, 372 U.S. 144, 168-69 (1963)).
¶ 25 In analyzing these factors, we take guidance from Bhalerao, a federal district court
decision that rejected several of the challenges to the Act that the plaintiffs now raise,
including the argument that the Act violates the double-jeopardy clauses of the federal and
Illinois constitutions. See Bhalerao, 834 F. Supp. 2d at 789-92. Indeed, for the most part, we
follow the Bhalerao court’s analysis.
¶ 26 Under the first factor, a statute imposes an affirmative disability or restraint when “ ‘the
sanction in question smacks of the infamous punishment of imprisonment.’ ” Bhalerao, 834
F. Supp. 2d at 789 (quoting Cox v. Commodity Futures Trading Comm’n, 138 F.3d 268, 272-
73 (7th Cir. 1998)). The Act’s license revocation provision imposes a serious penalty on the
plaintiffs, but that penalty does not amount to imprisonment. Bhalerao, 834 F. Supp. 2d at
789. On the second factor, “the revocation of a voluntarily granted privilege, like a license,
is not something that courts have regarded as a punishment.” Bhalerao, 834 F. Supp. 2d at
789. Thus, the first two factors indicate that the Act is not punitive. However, the third
factor, which applies where the law is triggered by an event that requires scienter, indicates
punitive effect: the convictions that trigger the Act all require proof of scienter. Bhalerao,
834 F. Supp. 2d at 789.
¶ 27 The fourth factor, like the first two, indicates that the Act does not have punitive effect.
That factor asks whether the sanction promotes traditional goals of criminal punishment,
such as retribution and deterrence. As the Bhalerao court explained, the Act accomplishes
very little toward those goals, because, when the Act was enacted, professional licenses were
“already subject to possible revocation for [criminal convictions], and thus the change in the
law–from discretionary revocation to mandatory revocation–does not appear to have been
intended as an additional deterrent or retribution.” Bhalerao, 834 F. Supp. 2d at 790.
¶ 28 The fifth factor, on the other hand, indicates that the Act does have punitive effect,
because the Act is triggered by behavior that is already criminal. Bhalerao, 834 F. Supp. 2d
at 790. As for the sixth factor, we agree with the Bhalerao court’s reasoning that the Act has
alternative (i.e., nonpunitive) purposes–namely, the protection of public health and safety and
the maintenance of the integrity of the medical profession–and that those purposes are
actually the primary goals of the legislation. Bhalerao, 834 F. Supp. 2d at 790. Thus, the
sixth factor indicates nonpunitive intent.
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¶ 29 On the seventh factor, which asks whether the sanction is excessive in relation to its
nonpunitive purpose, we part ways with the Bhalerao court’s analysis. In determining that
the seventh factor indicated punitive intent, the Bhalerao court reasoned that the Act, though
enacted for a nonpunitive purpose, is excessive in light of the fact that the plaintiff had
practiced medicine without further reported incident during the time since the Department
declined to revoke his license. Bhalerao, 834 F. Supp. 2d at 791. If the immediate threat to
patients were the only harm the Act was designed to address, we might agree with Bhalerao
that a professional’s later good conduct could prove the Act’s sanction to be excessive. The
immediate threat, however, is not the only concern that animates the Act. As the Bhalerao
court itself explained, the State has a “ ‘legitimate concern for maintaining high standards
of professional conduct,’ ” because “ ‘[t]he practice of medicine, in addition to skill and
knowledge, requires honesty and integrity of the highest degree.’ ” Bhalerao, 834 F. Supp.
2d at 791 (quoting Kaplan v. Department of Registration & Education, 46 Ill. App. 3d 968,
975 (1977)). Further, as the Bhalerao court also noted, “allowing convicted healthcare
professionals to continue to practice would give them access to patients and patient
information, after they have already been found to have violated” “the special trust
relationship between a patient and healthcare professional.” Bhalerao, 834 F. Supp. 2d at
791. Even if the Act may have proven unnecessary to meet the immediate threat the Bhalerao
plaintiff, or the plaintiffs here, posed to their patients, it is necessary to avoid these other
harms caused by the plaintiffs’ continued practice. For that reason, we conclude that the Act
is not excessive in light of its nonpunitive purposes.
¶ 30 On balance, then, we conclude, as did the Bhalerao court, that the above factors do not
indicate punitive effect. Because we conclude that the Act creates a civil penalty without
punitive effect, we hold that it does not violate the constitutional protection against double
jeopardy when applied to the plaintiffs.
¶ 31 The plaintiffs also maintain that the Act violates the proscriptions against ex post facto
laws contained in article I, section 9, of the United States Constitution (U.S. Const., art. I,
§ 9) and article I, section 16, of the Illinois Constitution (Ill. Const. 1970, art. I, § 16) when
applied to individuals, such as themselves, whose only conviction for battery against a
patient in the course of patient care occurred prior to August 20, 2011, the effective date of
the Act. They argue that the Act imposes an additional penalty, the revocation of their
professional licenses, for a criminal act committed before its effective date. We reject this
argument too.
¶ 32 Illinois construes the ex post facto clause in the Illinois Constitution in lockstep with the
United States Supreme Court’s interpretation of the ex post facto clause in the federal
Constitution. Konetski, 233 Ill. 2d at 209. It has long been held that any law which changes
the punishment for a crime and inflicts a greater punishment than the law annexed to the
crime when committed is an unconstitutional ex post facto law. Kring v. Missouri, 107 U.S.
221, 228 (1883). The constitutional prohibition against ex post facto laws is aimed at
legislative enactments that retroactively alter the definition of crimes or increase the
punishment for criminal acts. California Department of Corrections v. Morales, 514 U.S.
499, 505 (1995). While the constitutional prohibition against ex post facto laws generally
applies only to penal statutes (Collins v. Youngblood, 497 U.S. 37, 41 (1990)), it has been
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applied to civil statutes which can fairly be characterized as punitive (Leach, 639 F.3d at
772).
¶ 33 The Act is undoubtedly a civil statute, as demonstrated by its placement in the Civil
Administrative Code (20 ILCS 5/1-1 et seq. (West 2010)). Whether it may be fairly
characterized as punitive is determined by the same seven factors used in double jeopardy
analysis. Smith v. Doe, 538 U.S. 84, 97 (2003) (applying same seven Kennedy factors used
in double jeopardy analysis to ex post facto analysis). We determined in our double jeopardy
analysis that the Act’s license revocation mandate constitutes a civil sanction, not a criminal
punishment. We believe the Act is nonpunitive in nature, its clear intent being the protection
of the health, safety and welfare of the public; and that it was not intended as additional
punishment for the plaintiffs’ past criminal acts. See Bhalerao, 834 F. Supp. 2d at 792-93.
Accordingly, because it is not punitive, the Act does not violate the proscription against ex
post facto laws.
¶ 34 Next, the plaintiffs argue that the Act violates the Illinois Constitution’s separation of
powers provision, which states that the legislative, executive, and judicial branches shall be
separate and that “[n]o branch shall exercise powers properly belonging to another.” Ill.
Const. 1970, art. II, § 1. The main objective of the separation of powers clause is to ensure
that no governmental branch coerces or dominates another branch’s functions. City of
Waukegan v. Pollution Control Board, 57 Ill. 2d 170, 175 (1974). Although the three
branches must maintain some separation, “[t]he Supreme Court has never considered that the
powers of government are held in rigidly separated compartments.” Id. at 175. Therefore, one
branch is not completely restricted from exercising functions typically associated with the
powers of another branch. Id. at 174-75. Here, we accept the plaintiffs’ position that the
Department, an administrative agency possessing both rule-making and adjudicatory
functions, entered the prior orders allowing the plaintiffs to retain or reinstated their licenses
by exercising its quasi-judicial functions. Based on this premise, the plaintiffs argue that the
Act violates separation-of-powers principles in two ways.
¶ 35 First, some plaintiffs argue that by providing for no hearing, the Act removes the courts’
ability to review the Department’s decisions to revoke their licenses. However, in our
discussion of due process, we concluded that a hearing is not required to settle the question
of whether a health care worker has had a conviction that triggers the Act. Thus, the lack of
a hearing does not interfere with judicial review.
¶ 36 Second, other plaintiffs argue that the Act violates separation-of-powers principles,
because the legislature passed it in order to overturn the Department’s previous decisions that
allowed the plaintiffs to retain their licenses or have them reinstated. While the General
Assembly may not pass a statute in an attempt to change the result of a judicial decision
which has been finally decided as between the parties, the legislature “has the authority to
change the law for future cases arising from facts existing prior to the effective date of the
legislation which made the change.” Sanelli v. Glenview State Bank, 108 Ill. 2d 1, 10 (1985).
That is exactly the situation in this case. As we stated earlier, although the Act may draw
upon antecedent convictions for its operation, it does not operate retroactively and does not
retroactively affect the Department’s previous decisions. By the same token, in passing the
Act, the legislature did not overturn the Department’s prior decisions; rather, it prospectively
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revoked licenses as of the Act’s effective date. We, therefore, reject the plaintiffs’ argument
that the legislature improperly exercised the Department’s quasi-judicial powers by passing
the Act in order to overturn previous decisions that reinstated or allowed the plaintiffs to
retain their licenses.
¶ 37 Next, some plaintiffs argue that application of the Act to them violates the contracts
clause contained in article I, section 16, of the Illinois Constitution, because it impairs the
consent orders that they entered into with the Department. The contracts clause provides that
“[n]o *** law impairing the obligation of contracts *** shall be passed.” Ill. Const. 1970,
art. I, § 16. In order to determine whether a law violates the contracts clause, a court will
consider whether (1) a contractual obligation existed; (2) the law impaired that obligation;
(3) the impairment was substantial; and (4) the impairment was reasonable and necessary to
serve an important public purpose. In re Marriage of Rosenbaum-Golden, 381 Ill. App. 3d
65, 75-76 (2008). In this case, the parties do not dispute that the plaintiffs’ consent orders
constitute contracts. See In re M.M.D., 213 Ill. 2d 105, 114 (2004). The parties also agree
that the Act substantially impaired the plaintiffs’ contractual rights, because it resulted in the
permanent revocation of their licenses, a result not contemplated by the terms of their
consent orders with the Department. The parties disagree, however, as to whether the
substantial impairment was reasonable and necessary to serve an important public purpose.
¶ 38 Courts generally defer to legislative judgment as to the necessity and reasonableness of
legislation (Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400, 412-
13 (1983)), but, as the plaintiffs point out, courts limit that deference where the State is a
party to a contract and there is a possibility that the State impaired a contract out of self-
interest (Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 505 (1987)). Even
under the less deferential standard, however, we conclude that the impairment caused by the
Act is reasonable and necessary to serve an important public purpose.
¶ 39 The plaintiffs argue that the revocation of their licenses is not reasonable and necessary
because their behavior following their convictions demonstrates that they now pose no
danger to their patients. In fact, the plaintiffs argue that their conduct demonstrates that their
consent orders actually served the public interest better than the Act’s mandatory license
revocation provision. The reasonableness of the consent orders, however, is not our concern:
our inquiry focuses on whether the Act is reasonable and necessary to serve an important
public purpose. We conclude that it is.
¶ 40 All contracts are subject to the police power of the State. Commonwealth Edison Co. v.
Illinois Commerce Comm’n, 398 Ill. App. 3d 510, 529 (2009); Lincoln Towers Insurance
Agency, Inc. v. Boozell, 291 Ill. App. 3d 965, 969 (1997). As a result, the State may infringe
on a person’s contractual rights in order to safeguard the interests of its people. Sanelli, 108
Ill. 2d at 23. The legislature promulgated the Act to protect the public from health care
workers who have been convicted of certain crimes, as a response to what the legislature
deemed to be inadequate oversight provided by the Department. Just as we stated that the Act
is not excessive to meet its nonpunitive goals for purposes of double-jeopardy analysis, we
conclude that the Act is not excessive for purposes of the contract-clause analysis. Even if
the plaintiffs’ continued practice without further complaint has proven the Act to be
unnecessary to meet any immediate threat to their patients, it is nonetheless necessary to stop
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other harm to public safety. The plaintiffs’ continued licensure interferes with the State’s
high standards for licensure of health care workers, and it degrades public trust in a
profession that depends on a “special trust relationship between a patient and healthcare
professional.” Bhalerao, 834 F. Supp. 2d at 791. Accordingly, we reject the plaintiffs’
argument that the Act’s application to them violates the contract clause of the Illinois
Constitution.
¶ 41 The plaintiffs also argue that the Act violates the proportionate penalties clause of article
I, section 11, of the Illinois Constitution (Ill. Const. 1970, art. I, § 11), because the permanent
nature of the punishment does not correspond to the seriousness of their respective offenses
and does not aid in their rehabilitation. Article I, section 11, provides, in pertinent part, that:
“[a]ll penalties shall be determined both according to the seriousness of the offense and with
the objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. The
proportionate penalties clause in the Illinois Constitution is interpreted in lockstep with the
federal constitution’s prohibition against cruel and unusual punishment. Konetski, 233 Ill.
2d at 206-07. Both provisions apply only where the government has inflicted a penalty upon
a criminal defendant. People v. Boeckmann, 238 Ill. 2d 1, 17 (2010).
¶ 42 For the reasons set forth in our double jeopardy and ex post facto analyses, we find that
the Act is nonpunitive in nature, because its purpose is to protect the health, safety and
welfare of the public, and not to punish health care providers, such as the plaintiffs, for past
criminal convictions. See Rios v. James, 63 Ill. 2d 488, 497 (1976); Bhalerao, 834 F. Supp.
2d at 791-93. Because the Act is not punitive, it cannot constitute a disproportionate penalty.
¶ 43 Next, some plaintiffs argue that the revocation of their licenses is barred by the doctrine
of res judicata. “The doctrine of res judicata provides that a final judgment on the merits by
a court of competent jurisdiction is conclusive as to the rights of the parties and their privies,
and as to them, constitutes an absolute bar to a subsequent action involving the same claim,
demand, or cause of action.” Dowrick v. Village of Downers Grove, 362 Ill. App. 3d 512,
515-16 (2005). The doctrine applies to “administrative decisions that are adjudicatory,
judicial, or quasi-judicial.” Dowrick, 362 Ill. App. 3d at 516. In the plaintiffs’ view, the
Department’s previous orders punishing them for their misconduct constitute judgments that
bar any further punishment against them for the same conduct.
¶ 44 Even if we were to assume that the Department orders or agreements here could have
preclusive effect, we would find no res judicata bar under the current facts. Normally, res
judicata works to prevent repetitious lawsuits over decided matters. Statler v. Catalano, 293
Ill. App. 3d 483, 486-87 (1997) (quoting City of Des Plaines v. Metropolitan Sanitary
District of Greater Chicago, 16 Ill. App. 3d 23, 24-25 (1973)). Thus, the doctrine extends
only to the facts and conditions that existed at the time the original judgment was entered.
A change in circumstances can create a new basis for a claim and thus obviate the danger of
repetitive litigation. See Statler, 293 Ill. App. 3d at 487 (quoting City of Des Plaines, 16 Ill.
App. 3d at 24-25). For those reasons, “[a] change in law occurring between two successive
causes of action on the same subject matter renders res judicata inapplicable.” Bernstein v.
Department of Human Services, 392 Ill. App. 3d 875, 895 (2009).
¶ 45 In this case, we have just such a change in law. At the time the Department entered its
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original orders punishing the plaintiffs, Illinois law did not require that their licenses be
revoked under the circumstances presented here. Now, license revocation is mandated by the
Act. Accordingly, the Department’s original orders reflected the Department’s determination
as to whether license revocation was warranted, while the Department’s current orders reflect
its administration of a law requiring revocation. The two orders respond to different issues,
and they were issued pursuant to different statutes. For these reasons, res judicata does not
apply.
¶ 46 To urge the opposite conclusion, the plaintiffs direct us to City of Des Plaines v.
Metropolitan Sanitary District of Greater Chicago, 59 Ill. 2d 29 (1974), a decision they
argue stands for the proposition that “a change in circumstances in law cannot affect the res
judicata effect of a judgment.” We disagree with the plaintiffs’ reading of City of Des
Plaines. In that case, the City of Des Plaines sought a declaration that its zoning ordinance
barred the district from constructing a water reclamation plant on land it had purchased in
the city. City of Des Plaines, 59 Ill. 2d at 29-30. The zoning issue had been adjudicated in
the district’s favor, but the City of Des Plaines argued that the intervening adoption of a new
state constitution altered the parties’ relationship, so that the old judgment should not have
res judicata effect. City of Des Plaines, 59 Ill. 2d at 30-31. The supreme court responded that
“the cause of action, the issues, the parties and the relief sought in this action [were] identical
to those in the earlier case” and that the constitutional change was “irrelevant.” City of Des
Plaines, 59 Ill. 2d at 31. In our reading, this language does nothing to upset the principle that
a change in law nullifies the doctrine of res judicata; the language explains instead that there
was no relevant change in law in City of Des Plaines. Here, by contrast, after the issuance
of the Department’s first orders, the law fundamentally changed to foreclose the once-
available option to allow professionals to keep their licenses under the circumstances
presented in this case. After this change in the law, the Department’s prior orders lost their
res judicata effect.
¶ 47 Finally, the plaintiffs argue that the statute of limitations and repose defenses under the
Medical Practice Act (225 ILCS 60/22(A) (West 2010)) and the Code (735 ILCS 5/13-205
(West 2010)) would preclude the Department’s revocation of their licenses if the Act did not
bar them from raising those defenses. They argue, therefore, that the Act violates their right
to substantive due process by depriving them of vested time-bar defenses. We disagree,
because the time-bar defenses on which the plaintiffs rely have no applicability to revocation
proceedings under the Act.
¶ 48 It is true that section 2105-150 of the Act provides that, for violations of the Medical
Practice Act, the Department must follow the provisions of that act, including its limitations
provision, prior to taking disciplinary action. 20 ILCS 2105/2105-150 (West 2010).
However, section 2105-150 applies to violations of the Medical Practice Act, not the
mandatory revocation provision of section 2105-165 (the Act).
¶ 49 The plaintiffs also contend that, because the Act contains neither its own limitations
provision nor an explicit provision adopting or barring another statutory limitations period,
we should infer that the limitation in section 13-205 of the Code applies. We disagree.
¶ 50 In interpreting a statute, we seek to ascertain and give effect to the intent of the
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legislature. People ex rel. Department of Labor v. K. Reinke, Jr., & Co./Reinke Insulation,
319 Ill. App. 3d 721, 726 (2001). In Reinke, the court considered whether the omission of a
limitations provision in section 12(b) of the Minimum Wage Law (820 ILCS 105/12(b)
(West 1998)) meant that the legislature intended that no limitation apply to actions brought
by the Department of Labor, or whether the legislature intended to adopt the limitation
provision contained in section 13-205 of the Code. Reinke, 319 Ill. App. 3d at 726. The
Reinke court reasoned that while there is no rule that the State can never be bound by a
statute of limitations, the determination of whether a government action is immune from a
statute of limitations depends upon “whether the right sought to be asserted is a right
belonging to the ‘general public’ rather than to the government or to ‘some small and distinct
subsection of the public at large.’ ” Id. at 726 (quoting City of Shelbyville v. Shelbyville
Restorium, Inc., 96 Ill. 2d 457, 462 (1983)). The Reinke court determined that actions
brought by the Department of Labor involved a right belonging to the general public, despite
the fact that the actions involved individual employees, because the public at large had an
interest in enforcing minimum wage laws. Id. at 726-27. It concluded that the “legislature
likely believed that an action by a State agency to enforce compliance with a wage law
involved a public right and was immune from statutes of limitation.” Id. at 727. In this case,
given that the stated legislative policy behind the Act focuses on the right of the general
public to be protected from unauthorized or unqualified health care professionals (20 ILCS
2105/2105-10 (West 2010)), we conclude that legislature believed the Act involved a public
right and that an action brought by the Department to enforce it should carry no limitations
provision. For that reason, even assuming that the Act creates a cause of action to which a
statute of limitations can apply, we interpret the legislature’s omission of a limitations period
in the Act as an indication that no limitations period should apply, not as an incorporation
of the general limitations period contained in section 13-205 of the Code.
¶ 51 Having found that the limitations defenses in the Medical Practice Act and the Code do
not apply to the Act and that the legislature intended that no limitation apply to license
revocations pursuant to the Act, we reject the plaintiffs’ contention that they were deprived
of their due process rights.
¶ 52 Because none of the counts in the plaintiffs’ complaints in issue state claims upon which
relief may be granted, the complaints were properly dismissed pursuant to section 2-615 of
the Code. We, therefore, affirm the judgments of the circuit court of Cook County.
¶ 53 Affirmed.
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