Three v. The Department of Public Health ( 2017 )

FIRST DIVISION
May 22, 2017
No. 1-16-2548
2017 IL App (1st) 162548
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
)
JOHN DOE THREE, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
) No. 15 CH 16766
THE DEPARTMENT OF PUBLIC )
HEALTH and NIRAV D. SHAH, M.D., J.D., )
Director of Public Health, ) Honorable
) Neil H. Cohen,
Defendants-Appellants. ) Judge Presiding.
)
PRESIDING JUSTICE CONNORS delivered the judgment of the court, with opinion.
Justices Harris and Mikva concurred in the judgment and opinion.
OPINION
¶1 Plaintiff John Doe Three petitioned the Department of Public Health (Department) to add
“chronic post-operative pain” (CPOP) as a “debilitating medical condition” under the
Compassionate Use of Medical Cannabis Pilot Program Act (Act) (410 ILCS 130/1 et seq. (West
2014)). The Director of the Department, Nirav D. Shah, M.D., J.D., denied the petition, and
plaintiff sought judicial review under the Administrative Review Law (Review Law) (735 ILCS
5/3-101 et seq. (West 2014)). The circuit court reversed and remanded the case to the
No. 1-16-2548
Department for further proceedings. The Department then asked the circuit court to reconsider its
decision based on the fact that the Illinois General Assembly had recently amended the Act to
reflect new procedures when attempting to add conditions to the list of debilitating medical
conditions. The Department filed a motion to reconsider, asking the circuit court to reconsider its
order in light of the new provisions. The circuit court amended its previous order to outright
reverse the Department’s findings, without remand, and directed the Director to add CPOP to the
list of “debilitating medical conditions” under the Act within 30 days of its order. The
Department and its Director now appeal. 1
¶2 BACKGROUND
¶3 The Act, which became law in Illinois effective January 1, 2014, recognizes that using
medical cannabis may help treat or alleviate symptoms associated with “debilitating medical
conditions.” See 410 ILCS 130/5(b) (West 2014). The Act distinguishes between “medical and
non- medical uses of cannabis” and removes state criminal penalties for the medical use of
cannabis if certain conditions are satisfied. 410 ILCS 130/5(g) (West 2014). At the time plaintiff
petitioned the Department, the Act provided that any citizen could petition the Department to add
debilitating conditions or treatments to the list of debilitating medical conditions listed in
subsection (h) of section 10 of the Act. 410 ILCS 130/45 (West 2014).
¶4 The Department promulgated a rule governing such petitions which provided that an
advisory board would then “review petitions and recommend to the Department additional
debilitating conditions or diseases that would benefit from the medical use of cannabis.” 77 Ill.
Adm. Code 946.30(b) (2014). 2
1
This court stayed enforcement of the circuit court’s amended order pending this appeal.
2
The administrative rules found in 77 Ill. Adm. Code 946.30 were adopted on July 29, 2014. 38 Ill. Reg. 17367,
17382-87 (eff. July 29, 2014). At the time Plaintiff submitted his petition to the Department, an emergency rule was
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¶5 On March 2, 2015, plaintiff submitted a petition to the Department seeking to add CPOP
as a debilitating medical condition under the Act. The petition described his suffering from
CPOP as a result of excessive nerve damage from foot surgery. Plaintiff claimed he was unable
to perform routine daily tasks without suffering debilitating pain in his foot. Plaintiff also
claimed his condition interfered with his ability to perform in his career which involved hours of
standing and moving. According to plaintiff’s petition, his physicians had attempted to treat his
chronic pain with opiates, anticonvulsant drugs, and antidepressants. Plaintiff’s petition was
supported by a statement from his treating physician, William B. Evans, M.D., that supported
plaintiff’s use of medical cannabis to alleviate the symptoms of CPOP. Plaintiff also submitted
several medical and scientific journal articles supporting the prescription of cannabis for CPOP.
¶6 A public hearing was held on the petition, as well as other petitions seeking to add other
medical conditions to the Act. At the hearing, the Advisory Board members considered
plaintiff’s petition and supporting materials, and then voted. Of the 10 members, 7 voted to
approve the petition, while 3 voted not to.
¶7 On October 20, 2015, despite the recommendation of the Advisory Board, the Director
denied plaintiff’s petition, finding that “there was not substantial evidence from adequate, well-
controlled clinical trials to support the use of cannabis in the setting of chronic post-operative
pain. Therefore, the safety and efficacy for this medical condition cannot be assured.” Prior to
issuing his decision, the Director added articles to the record which were not presented by any of
the parties prior to the hearing.
¶8 Plaintiff then filed a complaint for administrative review, seeking reversal of the
Director’s denial of his petition. The circuit court found that the Director “clearly violated” the
in place that amended 77 Ill. Adm. Code 946.30(a) but did not make any changes to the remaining subsections in
section 946.30 specifically cited in this opinion. 39 Ill. Reg. 444, 456-62 (emergency rule eff. Dec. 22, 2014).
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Department’s rules governing the consideration of petitions to add debilitating conditions to the
Act by considering materials outside the petition. The circuit court noted that under the
applicable administrative rules, the Director was to review the Advisory Board’s
recommendations and render a final decision. 77 Ill Adm. Code 946.30(m) (2014). But instead of
reviewing the Advisory Board’s recommendations, the Director conducted his own investigation
and added his own evidence to the record. The circuit court stated that plaintiff was not given
any opportunity to challenge the additional evidence considered by the Director, which was a
denial of procedural due process.
¶9 The circuit court also noted that the standard set forth in the Department’s rules for
adding a medical condition was whether the debilitating condition or disease at issue would
benefit from the medical use of cannabis. However, in rendering his decision, the Director
considered whether there was substantial evidence from adequate, well-controlled clinical trials
to support the use of cannabis for the treatment of CPOP, which “appears nowhere in the Act or
the Department’s rules.”
¶ 10 The circuit court reversed the Director’s decision but remanded “for the issuance of a
new decision by the Director. The Advisory Board was not unanimous in its recommendation
regarding CPOP. The Director should have the opportunity to consider the addition of CPOP
under the correct standard.”
¶ 11 The Department and the Director then filed a motion to reconsider in light of the
Department’s emergency rules that were filed with the Illinois Secretary of State on August 1,
2016 (40 Ill. Reg. 10992 (emergency rule eff. Aug. 1, 2016)). 3 On June 30, 2016, section 45 of
3
An emergency amendment to 77 Ill. Adm. Code 946 was filed on August 1, 2016, and was to remain effective for
150 days. 40 Ill. Reg. 10992 (emergency rule eff. Aug. 1, 2016). The August 1, 2016, emergency amendment to 77
Ill. Adm. Code 946 was later amended on September 16, 2016. 40 Ill. Reg. 13732 (emergency rule eff. Sept. 16,
2016).
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the Act was amended by Public Act 99-519. See Pub. Act 99-519 (eff. June 30, 2016). The
amendment disbanded the Advisory Board, but allowed the Governor to appoint a new Advisory
Board. Pub. Act 99-519 (eff. June 30, 2016) (adding 410 ILCS 130/45(i)). The Act now
provides:
“The Department shall accept petitions once annually for a one-month period
determined by the Department. During the open period, the Department shall
accept petitions from any resident requesting the addition of a new debilitating
medical condition or disease to the list of approved debilitating medical
conditions for which the use of cannabis has been shown to have a therapeutic or
palliative effect. The Department shall provide public notice 30 days before the
open period for accepting petitions, which shall describe the time period for
submission, the required format of the submission, and the submission address.”
Id. (adding 410 ILCS 130/45 (b)).
¶ 12 The circuit court found that those rules did not apply retroactively to the Director’s
decision on plaintiff’s petition to add CPOP as a debilitating medical condition under the Act,
“as the Director’s [d]ecision under review in this case pre-dates the filing of the Department’s
emergency rules.” The circuit court also found that the standard set forth in the Department’s
emergency rules (40 Ill. Reg. 10992, 11012 (emergency rule eff. Aug. 1, 2016) (amending 77
Adm. Code 946.30(e))) shall not apply retroactively to the Director’s decision and that the
amendments to section 45 of the Act, adopted on June 30, 2016, through Public Act 99-519, did
not apply retroactively to the Director’s decision because the amendments made a substantive
change in the law, not a procedural change.
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¶ 13 The circuit court then amended its order reversing the Director’s decision denying
plaintiff’s petition and ordered the Director to add CPOP “by rule in accordance with the
Administrative Procedure Act.”
¶ 14 ANALYSIS
¶ 15 The Department and the Director now appeal, arguing that (1) the circuit court lacked
subject-matter jurisdiction over plaintiff’s action because section 45 of the Act does not
expressly adopt the Review Law as the method for reviewing a Director’s final decision, (2) even
if judicial review may proceed, the Director’s decision was quasi-legislative and should be
upheld because it was not arbitrary or capricious, and alternatively, (3) if this court affirms the
circuit court’s reversal of the Director’s decision, it should remand the case to the Department
and allow the amended regulations to apply since the amendments were procedural in nature and
not substantive.
¶ 16 Subject-Matter Jurisdiction
¶ 17 The first issue is whether the circuit court had subject-matter jurisdiction to review the
decision of the Director. The Department and the Director contend that while plaintiff invoked
the Review Law in his complaint and cited section 45 of the Act as the statutory provision that
adopted the Review Law as a method for review, the plain language of section 45 does not adopt
the Review Law. Plaintiff maintains that judicial review under the Act is “expressly addressed”
in both section 45 and section 155.
¶ 18 Section 155 of the Act is titled “Review of administrative decisions,” and states that “[a]ll
final administrative decisions of the Departments of Public Health, Department of Agriculture,
and Department of Financial and Professional Regulation are subject to direct judicial review
under the provisions of the [Review Law] and the rules adopted under that Law.” 410 ILCS
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130/155 (West 2014). There is no dispute that the decision of the Director was a final
administrative decision of the Department of Public Health. Section 45 of the Act, titled
“Addition of debilitating medical conditions,” explains the procedure by which to petition the
Department for an addition of a debilitating medical condition and then states that the “approval
or denial of any petition is a final decision of the Department, subject to judicial review.
Jurisdiction and venue are vested in the Circuit Court.” 410 ILCS 130/45 (West 2014).
¶ 19 The Department and the Director contend, citing Bank of America, N.A. v. Kulesza, 2014
IL App (1st) 132075, ¶ 20, that section 155’s invocation of the Review Law is meaningful
because the express inclusion of a provision in one part of a statute and its omission in a parallel
section is an intentional exclusion from the latter. Defendants contend that the Act creates
various methods of review, like sections 65(f) and 185(b), that both use the same language as
section 45 regarding judicial review (410 ILCS 130/65(f), 185(b) (West 2014) (Decisions are
“subject to judicial review. Jurisdiction and venue for judicial review are vested in the Circuit
Court.”)), and sections 110 and 155 that expressly state that final administrative decisions of
certain departments are subject to judicial review under the Review Law and its rules (410 ILCS
130/110, 155 (West 2014)). See 410 ILCS 130/110 (West 2014) (“All final administrative
decisions of the Department of Agriculture are subject to judicial review under the [Review Law]
and its rules.”)
¶ 20 An administrative agency’s decision is subject to review under the Review Law only
where “the Act creating or conferring power on such agency, by express reference, adopts the
provisions of [the Review Law].” 735 ILCS 5/3-102 (West 2014). We find that the Act adopts
the provisions of the Review Law by express reference when it states in section 155 that “[a]ll
final administrative decisions *** are subject to direct judicial review under the provisions of the
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[Review Law] and the rules adopted under that Law.” (Emphasis added.) 410 ILCS 130/155
(West 2014). A statute should be construed such that no portion of it is rendered meaningless.
In re Marriage of Kates, 198 Ill. 2d 156, 167 (2001). Where two statutes relate to the same
subject matter, they should be construed in pari materia, and an interpretation that gives meaning
to both is favored. Anderson v. Chicago Board of Election Commissioners, 284 Ill. App. 3d 832,
835-36 (1996). Section 155 would be rendered meaningless if we were to conclude that it
somehow did not apply to all final administrative decisions by the Department under the Act. See
County of Du Page v. Illinois Labor Relations Board, 231 Ill. 2d 593, 604 (2008) (“Words and
phrases should not be considered in isolation; rather they must be interpreted in light of other
relevant provisions and the statute as a whole.”) Considering the Act as a whole, defendants’
interpretation of section 45 would render section 155 meaningless, thus we find that section 155
merely clarifies section 45 and that final decisions of the Department are subject to direct judicial
review with jurisdiction and venue vesting in the Circuit Court under the Review Law. See
People v. Cherry Valley Public Library District, 356 Ill. App. 3d 893, 897 (2005) (the district’s
interpretation of a certain section would make another entire section of the Act in question
meaningless).
¶ 21 We find the cases defendants cite in support of their interpretation of the Act to be
inapposite. In Porter v. Illinois State Board of Education, 2014 IL App (1st) 122891, ¶ 24, article
14 of the School Code (105 ILCS 5/art. 14 (West 2012)) did not specifically adopt the Review
Law. Section 8.02a(i) of article 14 stated that any party dissatisfied with the agency’s decision
had a “right to commence a civil action with respect to the issues presented in the impartial due
process hearing” in “any court of competent jurisdiction” within 120 days. 105 ILCS 5/14-
8.02a(i) (West 2012)). Accordingly, this court found that because the decision of an impartial
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hearing officer under article 14 was not expressly reviewable under the Review Law, a writ of
certiorari was appropriate instead. Porter, 2014 IL App (1st) 122891, ¶ 24. In the case at bar, the
Act does expressly adopt the Review Law as the means to appeal a final decision of the
Department. 410 ILCS 130/155 (West 2014).
¶ 22 The other two cases cited by defendants are also inapposite for the same reason. See
Portman v. Department of Human Services, 393 Ill. App. 3d 1084, 1086-87 (2009) (the Public
Aid Code did not expressly make the Review Law applicable to agency decisions regarding child
care assistance even though the Review Law was adopted to review other decisions of that
agency in the same statute); Chicago Title Land Trust Co. v. Board of Trustees, 376 Ill. App. 3d
494, 499 (2007) (Review Law did not apply to decision of board of trustees where statute made
Review Law applicable only to decision of board of appeals). We reiterate that section 155 of the
Act expressly adopts the Review Law and specifically states that it applies to “all” final
decisions of the Department.
¶ 23 Additionally, we reject defendants’ argument in their reply brief, relying on Illinois
Supreme Court Rule 335 (eff. Jan. 1, 2016), that if plaintiff was seeking judicial review under
section 155 then he would have to file a petition directly in the appellate court. Rather, the
Review Law, which is expressly adopted by the Act, provides that “[j]urisdiction to review final
administrative decisions is vested in the Circuit Courts, except as to a final order of the Illinois
Educational Labor Relations Board in which case jurisdiction to review a final order is vested in
the Appellate Court.” 735 ILCS 5/3-104 (West 2014). Rule 335 governs those administrative
orders subject to direct review by the appellate court. There is nothing to indicate that the
Department’s final decision in this case is an order directly reviewable by the appellate court.
¶ 24 Director’s Decision
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¶ 25 Turning to the merits, we note that on appeal we review the administrative agency’s
decision and not the circuit court’s determination. Anderson v. Department of Professional
Regulation, 348 Ill. App. 3d 554, 560 (2004). “The applicable standard of review, which
determines the degree of deference given to the agency’s decision, depends upon whether the
question presented is one of fact, one of law, or a mixed question of law and fact.” AFM
Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 390 (2001). The
factual findings of the administrative agency are considered to be prima facie correct and will be
reversed only if against the manifest weight of the evidence. 735 ILCS 5/3-110 (West 2014).
Questions of law are reviewed de novo. MacDonald v. Board of Trustees of the Park Ridge
Police Pension Fund, 294 Ill. App. 3d 379, 382 (1998). And mixed questions of law and fact are
reviewed under the clearly erroneous standard. AFM Messenger Service, 198 Ill. 2d at 391-95.
¶ 26 Here, the question is whether the Director properly denied plaintiff’s petition to add
CPOP to list of debilitating medical conditions listed in subsection (h) of section 10 of the Act.
410 ILCS 130/45 (West 2014). This is a mixed question of law and fact. Accordingly, we will
review the Director’s decision under the “clearly erroneous” standard, which “lies somewhere
between a de novo and a manifest-weight-of-the-evidence standard, but provides some deference
to the agency’s experience and expertise.” Lombard Public Facilities Corp. v. Department of
Revenue, 378 Ill. App. 3d 921, 928 (2008).
¶ 27 At the time plaintiff submitted his petition, the Act stated that the Department “shall
consider petitions in the manner required by Department rule.” 410 ILCS 130/45 (West 2014).
The Department’s rules on this subject are found in part 946 of the Illinois Administrative Code,
titled “Compassionate Use of Medical Cannabis Patient Registry.” 77 Ill. Adm. Code 946
(2014). Section 946.30(b) stated that the Advisory Board “shall review petitions and recommend
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to the Department additional debilitating conditions or diseases that would benefit from the
medical use of cannabis.” 77 Ill. Adm. Code 946.30(b) (2014). A petition was to include (a) the
extent to which the condition or disease itself and/or the treatments cause severe suffering, such
as chronic pain, or otherwise severely impair a person’s ability to carry on with activities of daily
living; (b) information about why conventional medical therapies are not sufficient to alleviate
the suffering caused by the disease or condition and its treatment; (c) the proposed benefits from
the medical use of cannabis specific to the medical condition; (d) evidence from the medical
community and other experts supporting the use of medical cannabis to alleviate suffering
caused by the condition; (e) letters of support from physicians or other licensed health care
providers knowledgeable about the condition or the disease, including, if feasible, a letter from a
physician with whom the petitioner has a bona fide physician-patient relationship; and (f) any
medical, testimonial or scientific documentation. 77 Ill. Adm. Code 946.30(g) (2014). There is
no dispute that plaintiff’s petition included all of these elements, including a letter from his
treating physician.
¶ 28 The Department rules further stated that upon final determination, the Advisory Board
“shall provide the Director a written report of findings recommending either the approval or
denial of the petitioner’s request. The written report of findings shall include a medical
justification for the recommendation based upon the individual or collective expertise of the
Advisory Board membership. The medical justification shall delineate between the findings of
fact made by the Advisory Board and scientific conclusions of evidence-based medical
research.” 77 Ill. Adm. Code 946.30(l) (2014). Upon review of the Advisory Board’s
recommendations, the Director “will render a final decision regarding the acceptance or denial of
the proposed debilitating medical conditions or diseases.” 77 Ill. Adm. Code 946.30(m) (2014).
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¶ 29 In the case at bar, the Director determined that “there is not substantial evidence from
adequate, well-controlled clinical trials to support the use of cannabis ***. Therefore, the safety
and efficacy of cannabis for this medical condition cannot be assured.” The record reveals that
the Director reviewed plaintiff’s petition, the evidence submitted in support, the hearing
transcript, and the Advisory Board’s recommendation. Additionally, the record includes various
other medical articles that the Director reviewed.
¶ 30 We find that the Director did not follow Department rules when rendering his decision in
this case, in violation of the Act’s mandate that the Department “shall consider petitions in the
manner required by Department rule.” 410 ILCS 130/45 (West 2014). There is nothing in the
rules that mandates “substantial evidence from adequate, well-controlled clinical trials to support
the use of cannabis.” Rather, at the time of plaintiff’s petition, the rules indicated that petitions
should be supported by information about chronic pain, why conventional medical therapies
were insufficient, the proposed benefits from the medical use of cannabis, evidence from the
medical community, and letters of support, all of which were included in plaintiff’s petition. The
Advisory Board was then mandated to recommend to the Department additional debilitating
conditions or diseases that would benefit from the medical use of cannabis. While there is
nothing in the rules to indicate that the Director must follow the recommendations of the
Advisory Board, there is also nothing in the rules indicating that the Director should be using a
heightened standard of which plaintiff was unaware or the Director’s own research that was not
presented at the hearing. When the agency with primary jurisdiction applies the wrong standard
to the evidence before it, any resulting finding is invalid, and the case should be remanded. See
Violette v. Department of Healthcare & Family Services, 388 Ill. App. 3d 1108, 1113 (2009).
¶ 31 Effect of New Amendments
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¶ 32 Our determination that the Director’s findings were invalid leads us to the next question,
which is whether upon remand the Department is to follow the old guidelines for adding a
debilitating medical condition or the new ones. This requires a determination of whether the
amendments to the Act, which were added after the Director made his initial decision, apply
retroactively. The question of whether an amendment applies retroactively depends upon
whether the amendment makes a substantive change or a procedural change to the law.
¶ 33 Illinois courts have developed a three-tiered test to determine retroactivity. First, has the
legislature clearly indicated the temporal or retroactive reach of the amended statute?
Commonwealth Edison Co. v. Will County Collector, 196 Ill. 2d 27, 38-39 (2001). If not, is the
amendment procedural or substantive in nature? People v. Glisson, 202 Ill. 2d 499, 508 (2002).
Only those amendments that are procedural in nature may be applied retroactively. Id. And
finally, if the statute is procedural, does it have a “retroactive impact?” Commonwealth Edison,
196 Ill. 2d at 38-39. Absent retroactive impact, the amended statute will apply. Id. Whether an
amendment to a statute will be applied prospectively or retroactively is a matter of statutory
construction that we review de novo. People v. Blanks, 361 Ill. App. 3d 400, 407 (2005).
¶ 34 Here, the amendments are silent about their retroactive application. Thus, we must
determine whether the changes are procedural or substantive in nature. As our supreme court has
observed, “the line between ‘substance’ and ‘procedure’ may often be unclear.” Rivard v.
Chicago Fire Fighters Union, Local No. 2, 122 Ill. 2d 303, 310 (1988). “Procedure is the
machinery for carrying on the suit, including pleading, process, evidence and practice, whether
in the trial court, or in the processes by which causes are carried to the appellate courts for
review, or in laying the foundation for such review.” Ogdon v. Gianakos, 415 Ill. 591, 596
(1953). “Generally, a procedural change in the law prescribes a method of enforcing rights or
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involves pleadings, evidence and practice.” Schweickert v. AG Services of America, Inc., 355 Ill.
App. 3d 439, 442 (2005). On the other hand, a substantive change in the law establishes, creates,
or defines rights. Id. at 443.
¶ 35 In the case at bar, we agree with the circuit court that the amendments were substantive
in nature, not procedural, and are therefore not retroactive. The circuit court found, focusing on
40 Ill. Reg. 10992, 11012 (emergency rule eff. Aug. 1, 2016) (amending 77 Ill. Adm. Code
946.30(e)) and Public Act 99-519 (eff. June 30, 2016) (amending 410 ILCS 130/45), that the
amendments made a substantive change in the law and therefore did not apply retroactively.
After the August 1, 2016, emergency amendment, section 946.30(e) states that upon review of
accepted petitions, “the Director will consult with Department staff to analyze the clinical and
scientific merit of the petitions. This consultation will occur before the Director renders a final
decision regarding the acceptance or denial of the proposed debilitating medical conditions or
diseases.” (Emphasis omitted.) 40 Ill. Reg. 10992, 11012 (emergency rule eff. Aug. 1, 2016)
(amending 77 Ill. Adm. Code 946.30(e)). Section 45 of the Act now states that the Department
will only accept petitions once annually for a one-month period. Pub. Act 99-519 (eff. June 30,
2016) (adding 410 ILCS 130/45(b)). The requirements regarding the information that must be
submitted with the petitions are substantially the same. Id. (adding 410 ILCS 130/45(d)). There
is no longer a review from the advisory board or a recommendation to the Director. Rather,
“[u]pon review of accepted petitions, the Director shall render a final decision regarding the
acceptance or denial of the proposed debilitating medical conditions or diseases.” Id. (adding 410
ILCS 130/45(f)). The advisory board now only convenes to examine debilitating conditions or
diseases that would benefit from the medical use of cannabis, review medical and scientific
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evidence pertaining to currently approved conditions, and issue an annual report of its activities
each year. Id. (adding 410 ILCS 130/45(j)-(k)).
¶ 36 Before the amendments, as long as the petition met all the requirements, the petition
received a hearing by the advisory board. The advisory board then reviewed petitions and
recommended to the Department “additional debilitating conditions or diseases that would
benefit from the medical use of cannabis.” 77 Ill. Adm. Code 946.30(b) (2014). Now, after the
amendments, the Department accepts petitions once annually and there is no hearing
requirement. There is no standard delineated upon which the Director should ultimately approve
or deny a proposed debilitating medical condition. These changes are substantive in nature as
they most certainly create different rights of the petitioner than existed before.
¶ 37 Moreover, we note that there is a long-standing rule that prospective application of
statutes is to be preferred to retroactive application because of the fundamental principle of
jurisprudence that the retroactive application of new laws is usually unfair and the general
consensus that notice or warning of the rule should be given in advance of the action whose
effects are to be judged. Moshe v. Anchor Organization for Health Maintenance, 199 Ill. App. 3d
585, 598 (1990). “As a general rule, an amendatory statute will be construed prospectively rather
than retroactively; the presumption of prospectivity is rebuttable, but only by the act itself which,
either by express language or necessary implication, must clearly indicate that the legislature
intended a retroactive application.” Harraz v. Snyder, 283 Ill. App. 3d 254, 259 (1996) (citing
Rivard, 122 Ill. 2d at 309). Here, there is absolutely no language suggesting retroactivity, and in
fact, after the Act and the Administrative Code were amended, the Department stated that it was
adopting additional emergency amendments to the previous Administrative Code emergency
rulemaking (40 Ill. Reg. 10992 (emergency rule eff. Aug. 1, 2016)) to clarify the fee structure
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and the process used for the review of petitions “in January 2016.” 40 Ill. Reg. 13732
(emergency rule eff. Sept. 16, 2016). Plaintiff filed his petition in March 2015.
¶ 38 CONCLUSION
¶ 39 Accordingly, for the reasons set forth above, we affirm in part the judgment of the circuit
court of Cook County in so much as it reversed the Director’s decision denying plaintiff’s
petition, but we reverse the portion of the circuit court’s order directing the Director to “add
CPOP by rule *** within thirty (30) days of entry.” We remand to the Director for consideration
in accordance with the preamendment Act (410 ILCS 130/45 (West 2014)) and accompanying
Department rule (39 Ill. Reg. 444 (emergency rule eff. Dec. 22, 2014) (amending 77 Ill. Adm.
Code 946)).
¶ 40 Affirmed in part and reversed in part; cause remanded.
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