Hayashi v. Illinois Department of Financial & Professional Regulation , 2014 IL 116023 ( 2015 )

Illinois Official Reports
Supreme Court
Hayashi v. Illinois Department of Financial & Professional Regulation,
2014 IL 116023Caption in Supreme BRADLEY HIROSHI HAYASHI, D.C., et al., Appellants, v. THE
Court: ILLINOIS DEPARTMENT OF FINANCIAL AND
PROFESSIONAL REGULATION et al., Appellees.
Docket Nos. 116023, 116163, 116190 cons.
Filed October 17, 2014
Rehearing denied January 26, 2015
Held Because medical licenses are subject to ongoing State regulation to
(Note: This syllabus protect the public, the 2011 statute mandating permanent revocation
constitutes no part of the of the licenses of health care workers convicted of certain criminal
opinion of the court but offenses established new eligibility requirements as of its effective
has been prepared by the date and is neither retroactive nor subject to constitutional challenge
Reporter of Decisions as such; and prior discipline is not a res judicata bar to such license
for the convenience of revocation, while prior reinstatement does not create any vested right
the reader.) to practice.
Decision Under Appeal from the Appellate Court for the First District; heard in that
Review court on appeal from the Circuit Court of Cook County, the Hon.
Franklin U. Valderrama, Judge, presiding.
Judgment Affirmed.
Counsel on Dennis Doherty, of Chicago, for appellant Hayashi.
Appeal
Charles P. Sheets, Kathryn M. Stalmack and Paula S. Kim, of
Polsinelli PC, of Chicago, for appellant Jafari.
William C. Coughlin, of Worth, for appellant Khaleeluddin.
Lisa Madigan, Attorney General, of Springfield (Carolyn E. Shapiro,
Solicitor General, and Nadine J. Wichern, Assistant Attorney General,
of Chicago, of counsel), for appellees.
Claudia E. Castro, of Springfield, and Marc E. Rosenthal, Michael F.
Derksen and Jacki L. Anderson, of Proskauer Rose LLP, of Chicago,
for amicus curiae Illinois Coalition Against Sexual Assault.
Justices JUSTICE BURKE delivered the judgment of the court, with opinion.
Chief Justice Garman and Justices Freeman, Thomas, Kilbride,
Karmeier, and Theis concurred in the judgment and opinion.
OPINION
¶1 Pursuant to section 2105-165 of the Department of Professional Regulation Law (20 ILCS
2105/2105-165 (West 2012)) (the Act), the Illinois Department of Financial and Professional
Regulation (Department) permanently revoked plaintiffs’ health care licenses as a result of
plaintiffs’ prior misdemeanor convictions for battery and criminal sexual abuse of their
patients. Plaintiffs filed complaints for declaratory and injunctive relief, which the circuit court
of Cook County dismissed. The appellate court affirmed. 2013 IL App (1st) 121142.
¶2 In this court, plaintiffs challenge the revocation of their licenses on a number of grounds.
They contend that the Act: (1) does not apply to individuals who were convicted of a triggering
offense prior to the Act’s effective date; (2) is impermissibly retroactive and impairs certain
fundamental rights, in violation of substantive due process (U.S. Const., amend. XIV; Ill.
Const. 1970, art. I, § 2); (3) violates procedural due process; (4) is unenforceable based on the
res judicata effect of the previous discipline imposed by the Department; (5) violates the
federal and state constitutional protections against double jeopardy (U.S. Const., amend. V; Ill.
Const. 1970, art. I, § 10); (6) violates the prohibition against bills of attainder in the United
States Constitution (U.S. Const., art. I, §§ 9, 10); (7) violates the takings clause in the United
States Constitution (U.S. Const., amend. V); and (8) violates the federal and state
constitutional prohibitions against ex post facto laws (U.S. Const., art. I, §§ 9, 10; Ill. Const.
1970, art. I, § 16).
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¶3 We find no merit in any of plaintiffs’ claims, and, consequently, affirm the appellate
court’s judgment affirming the circuit court’s dismissal of plaintiffs’ complaints.
¶4 BACKGROUND
¶5 Bradley Hiroshi Hayashi, D.C., was licensed as a chiropractic physician in 2000. On May
21, 2007, Hayashi was convicted of misdemeanor battery for touching a patient
inappropriately during treatment. On November 24, 2008, the Department entered an order
memorializing a consent agreement between Hayashi and the Department, pursuant to its
authority to discipline health care professionals under the Medical Practice Act of 1987. 225
ILCS 60/22 (West 2008). The order stated that Hayashi’s license to practice as a chiropractic
physician would be suspended for 30 days and, thereafter, would be reinstated on a
probationary basis for a minimum of three years, subject to the terms and conditions in the
order. That order was in effect at the time of the revocation of Hayashi’s license.
¶6 Nercy Jafari, M.D., a licensed physician, was convicted in August 2001 of misdemeanor
criminal sexual abuse for inappropriately touching a female patient. He was sentenced to 24
months’ probation and was required to register as a sex offender for 10 years, pursuant to the
Sex Offender Registration Act (730 ILCS 150/1 et seq. (West 2000)). In 2003, the Department
determined after an investigation that Jafari’s medical license need not be suspended, revoked,
or otherwise limited. Jafari’s duty to register as a sex offender expired on August 24, 2011.
¶7 Mohammed Khaleeluddin, M.D., a licensed physician, had his license to practice medicine
suspended by the Department in 1998, based on allegations of inappropriate or sexual
misconduct with his female patients. (Spelling of Khaleeluddin’s surname reflects that found
on his initial complaint and his professional license.) Khaleeluddin was convicted in 2000 of
four counts of misdemeanor battery in connection with the allegations. Khaleeluddin’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, after an evidentiary
hearing, the Department entered an order terminating Khaleeluddin’s probationary status and
restoring his medical license to unencumbered status.
¶8 On July 21, 2011, the Illinois General Assembly enacted Public Act 97-156, which
amended the Department of Professional Regulation Law of the Civil Administrative Code of
Illinois by adding section 2105-165 (20 ILCS 2105/2105-165 (West 2012)). Effective August
20, 2011, the Act mandates the permanent revocation, without a hearing, of the license of a
health care worker who has been convicted of certain criminal offenses, including criminal
battery against any patient in the course of patient care or treatment and any criminal offense
which requires registration under the Sex Offender Registration Act. The purpose of the Act
was to protect the health, safety, and welfare of the public by ensuring that individuals
convicted of certain sex offenses would no longer be eligible to practice medicine in Illinois.
20 ILCS 2105/2105-10 (West 2012); 97th Ill. Gen. Assem., Senate Proceedings, May 18,
2011, at 27 (statements of Senator Dillard).
¶9 Shortly after the Act went into effect, the Department issued notices to plaintiffs indicating
its intent to revoke their licenses pursuant to the Act because each of the plaintiffs had been
convicted of a crime listed in the Act. Plaintiffs filed separate actions in the circuit court of
Cook County against the Department and individual Department officials seeking injunctive
relief and a judicial declaration that the Act may be applied only to convictions imposed after
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its effective date. The Department subsequently entered administrative orders permanently
revoking plaintiffs’ health care licenses.
¶ 10 The circuit court denied plaintiffs’ motions for preliminary injunctions on the basis that
they showed no likelihood of success on the merits of their claims. The court also granted
defendants’ motions to dismiss plaintiffs’ complaints pursuant to section 2-615 of the Code of
Civil Procedure (Code) (735 ILCS 5/2-615 (West 2012)), finding that plaintiffs failed to state
claims upon which relief could be granted. Plaintiffs appealed. The appellate court
consolidated the appeals and affirmed the circuit court’s section 2-615 dismissals. 2013 IL
App (1st) 121142, ¶ 52.
¶ 11 We allowed plaintiffs’ petitions for leave to appeal (Ill. S. Ct. R. 315 (eff. July 1, 2013)),
and consolidated the cases for review.1
¶ 12 Analysis
¶ 13 I. Legislative Intent
¶ 14 Plaintiffs first argue that the Act does not apply to them because there is no clear
expression of legislative intent that individuals convicted of a listed offense prior to the Act’s
effective date are subject to mandatory revocation of their licenses. Accordingly, plaintiffs
contend that they fall outside the intended reach of the Act.
¶ 15 The Act provides, in part:
“(a) When a licensed health care worker, as defined in the Health Care Worker
Self-Referral Act, (1) has been convicted of a criminal act that requires registration
under the Sex Offender 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) is required as a part of a criminal sentence to register under the Sex
Offender Registration Act, then, notwithstanding any other provision of law to the
contrary, the license of the health care worker shall by operation of law be permanently
revoked without a hearing.” (Emphases added.) 20 ILCS 2105/2105-165(a) (West
2012).
¶ 16 The fundamental rule of statutory construction is to ascertain and effectuate the
legislature’s intent. Wisniewski v. Kownacki, 221 Ill. 2d 453, 460 (2006). The most reliable
indicator of the legislative intent is the language of the statute itself, which must be given its
plain and ordinary meaning. Solon v. Midwest Medical Records Ass’n, 236 Ill. 2d 433, 440
(2010). Where the language is clear and unambiguous, a court may not depart from the plain
language by reading into the statute exceptions, limitations, or conditions that the legislature
did not express. Evanston Insurance Co. v. Riseborough, 2014 IL 114271, ¶ 15. In determining
the plain meaning, we must consider the statute in its entirety, the subject it addresses, and the
apparent intent of the legislature in enacting it. Orlak v. Loyola University Health System, 228
Ill. 2d 1, 8 (2007). The construction of a statute is a question of law that is reviewed de novo.
People v. Ramirez, 214 Ill. 2d 176, 179 (2005). We also review de novo the dismissal of a
1
One of the appellants in the appellate court, plaintiff Angelo Consiglio, M.D., did not file a petition
for leave to appeal in this court.
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complaint pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2012)). Marshall v.
Burger King Corp., 222 Ill. 2d 422, 429 (2006).
¶ 17 Contrary to plaintiffs’ argument, the plain language of the Act clearly indicates that the
legislature intended it to apply to convictions predating its effective date. The best evidence of
the legislative intent is the language of the Act itself. Solon, 236 Ill. 2d at 440. The phrase, “has
been convicted,” in reference to three of the four triggering offenses in subsection
2105-165(a), is in the present perfect tense. The present perfect tense is “a verb form used to
denote action beginning in the past and continuing to the present.” In re Gwynne P., 215 Ill. 2d
340, 357-58 (2005) (citing Williams v. Augusta County School Board, 445 S.E.2d 118, 120-21
(Va. 1994), and Warriner’s English Grammar and Composition 148 (1965)). “[H]as been
convicted,” as used in the Act, thus refers to health care workers who hold the status of having
been convicted of a particular offense, no matter when that status was obtained.
¶ 18 Plaintiffs maintain that section 2105-165 is ambiguous with regard to its intended reach
because a reasonable interpretation of the statutory language is that it applies only to
convictions occurring after the statute’s enactment. See Wade v. City of North Chicago Police
Pension Board, 226 Ill. 2d 485, 511 (2007) (an ambiguous statute is one which is “ ‘capable of
being understood by reasonably well-informed persons in two or more different senses’ ”
(citing People v. Jameson, 162 Ill. 2d 282, 288 (1994))). We disagree. The only reasonable
interpretation of the phrase, “has been convicted” is to refer to individuals convicted of certain
offenses before or after the Act’s effective date. Had the General Assembly intended to limit
the Act’s reach only to convictions occurring after August 20, 2011, it would have made that
intent explicit. For example, the Act could have stated that a licensed health care worker who
“is convicted” of a particular crime is subject to mandatory revocation of his or her license.
Alternatively, the Act could have included limiting language to indicate that only convictions
after a certain date would expose workers to revocation of their licenses. Instead, the plain
language clearly indicates the legislative intent to subject persons to the Act without regard to
the date of their convictions.
¶ 19 Plaintiffs’ argument that their licenses are not subject to revocation under subsection
2105-165(a) based on the fact that other subsections of the Act are inapplicable to them is
unavailing. Subsection (c) imposes certain procedural requirements which must take place
when a licensed health care worker is charged with a crime listed in the Act. 20 ILCS
2105/2105-165(c) (West 2012). Subsection (e) allows revocation orders to be vacated in
certain circumstances, including where criminal charges have been dropped, licensees have
not been convicted of the charged offenses, or the convictions have been vacated, overturned,
or reversed. 20 ILCS 2105/2105-165(e) (West 2012). However, because one part of the statute
does not apply to plaintiffs does not mean that other parts do not. Even if none of the provisions
in subsections (c) and (e) applies to plaintiffs, it does not mean that the general rule in
subsection (a) does not apply to them. We find that the plain language of the Act clearly applies
to convictions imposed prior to the Act’s effective date.
¶ 20 II. Substantive Due Process
¶ 21 A. Retroactivity
¶ 22 Plaintiffs next contend that, even if they fall within the plain language of the Act based on
their prior convictions, the application of section 2105-165 to them is impermissibly
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retroactive in violation of their substantive due process rights. U.S. Const., amend. XIV; Ill.
Const. 1970, art. I, § 2. A statute is presumed to be constitutional, and the party challenging the
statute bears the burden of demonstrating its invalidity. Allen v. Woodfield Chevrolet, Inc., 208
Ill. 2d 12, 21 (2003). A court has a duty to construe a statute in a manner that upholds its
validity and constitutionality if it can reasonably be done. People v. Hollins, 2012 IL 112754,
¶ 13. The constitutionality of a statute and whether a party’s constitutional rights have been
violated are reviewed de novo. Lazenby v. Mark’s Construction, Inc., 236 Ill. 2d 83, 93 (2010).
¶ 23 In determining whether a statute may be applied retroactively, as opposed to prospectively
only, this court has adopted the approach set forth by the United States Supreme Court in
Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994). Commonwealth Edison Co. v. Will
County Collector, 196 Ill. 2d 27, 38 (2001). Under Landgraf, if the legislature has clearly
prescribed the temporal reach of the statute, the legislative intent must be given effect absent a
constitutional prohibition. Where there is no express provision regarding the temporal reach,
the court must determine whether applying the statute would have a “retroactive” or
“retrospective” impact; that is, “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.” Landgraf, 511 U.S. at 280. Where there would be no
retroactive impact, as defined in Landgraf, the court may apply the statute to the parties.
Commonwealth Edison Co., 196 Ill. 2d at 38. However, if applying the statute would have a
retroactive impact, then the court must presume that the legislature did not intend that it be so
applied. Id.¶ 24 Applying the Landgraf test to the Act, we find that the legislature plainly indicated the
temporal reach by stating that the license of a health care worker who has been convicted of
one of the triggering offenses shall by operation of law be permanently revoked without a
hearing. 20 ILCS 2105/2105-165(a) (West 2012). The Act provides that revocation of health
care licenses pursuant to its provisions takes place only after its effective date. Thus, the Act is
solely prospective and not retroactive in its operation. That being so, there is no need to turn to
the alternative statutory sources suggested by plaintiffs in order to define the temporal reach of
the Act. Section 4 of the Statute on Statutes (5 ILCS 70/4 (West 2012)) controls by default only
where the legislature has not clearly defined the temporal reach of a statute. Caveney v. Bower,
207 Ill. 2d 82, 92-93 (2003). If the legislature has clearly indicated the temporal reach of a
provision, section 4 is inapplicable. Doe A. v. Diocese of Dallas, 234 Ill. 2d 393, 406-07
(2009). The savings clause of the Civil Administrative Code (20 ILCS 5/5-95 (West 2012)), is
irrelevant to our analysis for the same reason.
¶ 25 Despite the plain language indicating a clear legislative intent that the Act operate
prospectively, plaintiffs argue that the Act is retroactive as applied to them because their health
care licenses were revoked as a consequence of their prior convictions. We reject this argument
and agree with the appellate court that the Act’s reliance on convictions predating its
enactment does not render it retroactive as that term has been defined in case law. 2013 IL App
(1st) 121142, ¶ 15. “A statute does not operate ‘retrospectively’ merely because it is applied in
a case arising from conduct antedating the statute’s enactment, [citation], or upsets
expectations based in prior law.” Landgraf, 511 U.S. at 269; see also Cox v. Hart, 260 U.S.
427, 435 (1922) (“A statute is not made retroactive merely because it draws upon antecedent
facts for its operation.”).
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¶ 26 Although the Act relies upon antecedent facts—plaintiffs’ convictions—for its operation,
it does not apply retroactively to them. Section 2105-165 defines new per se eligibility
requirements with which licensees must comply in order to practice their health care
professions in Illinois. The Act does not “reach back in time” to change the criminal penalties
imposed on plaintiffs’ convictions, nor does it render unlawful conduct that was lawful at the
time it was committed. Mohammad v. Department of Financial & Professional Regulation,
2013 IL App (1st) 122151, ¶ 14. Moreover, the Act has no effect on plaintiffs’ right to practice
their health care professions prior to August 20, 2011, the Act’s effective date. 2013 IL App
(1st) 121142, ¶ 16. See also Bhalerao v. Illinois Department of Financial & Professional
Regulations, 834 F. Supp. 2d 775, 783 (N.D. Ill. 2011) (subsection 2105-165(a) found not to be
retroactive where it did not affect the plaintiff’s right to practice medicine prior to its
enactment, for example, by divesting him of any profits earned during that time, or by deeming
unauthorized his practice of medicine during the time between his conviction and the
revocation of his license). An amended statute which creates new requirements to be imposed
in the present or future, and not in the past, does not have a retroactive impact on the parties.
Wisniewski v. Kownacki, 221 Ill. 2d 453, 462-63 (2006). Subsection 2105-165(a) affects only
the present and future eligibility of plaintiffs to continue to use their health care licenses. The
Act’s impact on plaintiffs, thus, is solely prospective and not impermissibly retroactive within
the meaning of the test articulated in Landgraf.
¶ 27 B. Right to a Medical License
¶ 28 Plaintiffs next contend that the Act is unconstitutional because it deprives them of a
fundamental property right, their health care licenses, in violation of substantive due process.
When a statute is challenged based upon substantive due process grounds, the threshold
question is whether the statute restricts or regulates a fundamental right. Potts v. Illinois
Department of Registration & Education, 128 Ill. 2d 322, 329 (1989); Gersch v. Department of
Professional Regulation, 308 Ill. App. 3d 649, 655 (1999). A statute which restricts a
fundamental right must be examined under strict scrutiny. Potts, 128 Ill. 2d at 329. Under strict
scrutiny analysis, legislation which significantly interferes with the exercise of a fundamental
right will be upheld only if it is necessary to promote a compelling state interest and is
narrowly tailored to effectuate only that interest. Id. Legislation which does not affect a
fundamental right will be examined under the rational basis test, which requires a court to
uphold a statute if it bears a rational relationship to a legitimate legislative purpose and is
neither arbitrary nor discriminatory. Id.¶ 29 While this court has held that “a license to practice medicine is a ‘property right,’ within
the meaning of the constitutional guarantees of due process of law” (Smith v. Department of
Registration & Education, 412 Ill. 332, 340-41 (1952)), this simply means that proceedings to
revoke medical licenses must comply with procedural due process guarantees. Id.; Wilson v.
Department of Professional Regulation, 344 Ill. App. 3d 897, 907 (2003). The right to pursue a
profession is not a fundamental right for substantive due process purposes, however, and
legislation infringing upon that right need only be examined using the rational basis test. Potts,
128 Ill. 2d at 330. In applying the rational basis test, we must identify the public interest that
the statute was intended to protect, determine whether the statute bears a reasonable
relationship to that interest, and verify whether the means chosen to protect that interest are
reasonable. Arangold Corp. v. Zehnder, 204 Ill. 2d 142, 147 (2003). As long as there is a
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reasonably conceivable set of facts showing that the legislation is rational, it must be upheld.
Id. Whether the statute is wise or sets forth the best means to achieve the desired result are
matters for the legislature, not the courts. Id.; Village of Lake Villa v. Stokovich, 211 Ill. 2d 106,
125-26 (2004).
¶ 30 The public interest underlying the Act is the protection of the public’s health, safety, and
welfare, as set forth in section 2105-10 of the Department of Professional Regulation Law:
“Legislative declaration of public policy. The practice of the regulated professions,
trades, and occupations in Illinois is hereby declared to affect the public health, safety,
and welfare of the People of this State and in the public interest is subject to regulation
and control by the Department of Professional Regulation.
It is further declared to be a matter of public interest and concern that standards of
competency and stringent penalties for those who violate the public trust be established
to protect the public from unauthorized or unqualified persons representing one of the
regulated professions, trades, or occupations ***.” 20 ILCS 2105/2105-10 (West
2012).
¶ 31 To the extent that plaintiffs argue that their medical licenses are “vested” rights which are
protected from any legislative interference, they are incorrect. Medical licenses are subject to
ongoing State legislation intended to promote the general welfare. Rios v. Jones, 63 Ill. 2d 488,
497 (1976). The legislature has broad regulatory powers to set licensing requirements which
are rationally related to the legitimate state interest of protecting the public from unqualified
medical practitioners. Potts, 128 Ill. 2d at 330-33; People ex rel. Sherman v. Cryns, 203 Ill. 2d
264, 280-82 (2003); Carter-Shields v. Alton Health Institute, 201 Ill. 2d 441, 462 (2002). In
addition, the legislature has a duty to require that applicants for medical licenses possess good
moral character. Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76,
91 (1992). Accordingly, we find that the Act, which bars health care workers previously
convicted of certain criminal offenses involving their patients from practicing their
professions, bears a reasonable relationship to the legitimate state interest of regulating the
medical profession for the protection of the public.
¶ 32 We are cognizant that application of the Act to plaintiffs may yield harsh results by
permanently barring plaintiffs from using their medical licenses or practicing their chosen
professions. However, it is not a matter for this court to question the wisdom of the General
Assembly in establishing licensing requirements, nor to determine whether it has chosen the
best available means to achieve its desired result. People v. Shephard, 152 Ill. 2d 489, 503
(1992); Potts, 128 Ill. 2d at 333. “It is well settled that the General Assembly has wide
regulatory power with respect to the health-care professions, and it is within the broad
discretion of the legislature ‘ “to determine not only what the public interest and welfare
require, but to determine the measures needed to secure such interest.” ’ ” Cryns, 203 Ill. 2d at
280 (quoting Burger v. Lutheran General Hospital, 198 Ill. 2d 21, 41 (2001), quoting Chicago
National League Ball Club, Inc. v. Thompson, 108 Ill. 2d 357, 364 (1985)). It is the
responsibility of the legislature, not the courts, to balance plaintiffs’ interests in the practice of
their health care professions against the State’s interests in regulating medical licenses and
protecting the public. Potts, 128 Ill. 2d at 333 (citing Williamson v. Lee Optical of Oklahoma,
Inc., 348 U.S. 483, 487 (1955)). Section 2105-165 imposes mandatory revocation of health
care licenses on plaintiffs based on their convictions of certain criminal offenses during the
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course of patient care or treatment. There is no question that the means chosen by the
legislature is rationally related to the goal of protecting the public health, safety and welfare
and is a valid exercise of the State’s power to regulate health care professionals. Plaintiffs have
not alleged a substantive due process violation based on the revocation of their health care
licenses pursuant to the Act.
¶ 33 C. Right of Repose in Medical Practice Act
¶ 34 Plaintiffs argue that the Act impairs their vested right of repose to be free from discipline
imposed by the Department as a result of their prior convictions. They rely on the rule that
“once a claim is time-barred, it cannot be revived through subsequent legislative action
without offending the due process protections of our state’s constitution.” Doe A. v. Diocese of
Dallas, 234 Ill. 2d 393, 411 (2009). Plaintiffs acknowledge that the Act itself does not contain
a statute of limitations or statute of repose. They contend, however, that section 22 of the
Medical Practice Act of 1987 (225 ILCS 60/22 (West 2012)), afforded them a “vested” right of
repose which shielded them from the revocation of their medical licenses by the Department
once the statutory repose period had passed.2 The Medical Practice Act gives the Department
discretion to revoke, suspend, place on probation, reprimand, refuse to issue or renew, or take
any other disciplinary or non-disciplinary action against the license of a medical professional,
upon any of the grounds enumerated in section 22 of the Medical Practice Act. 225 ILCS
60/22(A) (West 2012). The listed grounds include “[i]mmoral conduct in the commission of
any act including, but not limited to, commission of an act of sexual misconduct related to the
licensee’s practice.” 225 ILCS 60/22(A)(20) (West 2012). Under the statute of limitations in
the version of the Medical Practice Act in effect at the time of plaintiffs’ convictions, any
disciplinary action taken by the Department must have been commenced within three years
after receiving notice of an allegation of misconduct or notice of a conviction. 225 ILCS
60/22(A) (West 1998). The repose provision at that time provided that no action could be
commenced by the Department more than five years after the date of the incident or action
alleged to have violated the Medical Practice Act. Id. For purposes of Jafari’s and
Khaleeluddin’s licenses, the three-year limitations period and five-year repose period had
expired prior to section 2105-165 being enacted.3
¶ 35 Plaintiffs’ contention that the Department was time-barred from revoking their licenses
pursuant to subsection 2105-165(a), based on the limitations and repose provisions in the
Medical Practice Act, is misguided. The cases cited by plaintiffs do not support their position.
In M.E.H. v. L.H., 177 Ill. 2d 207, 218 (1997), the court held that a party who was shielded
from liability based on the expiration of a statute of repose had a right to rely on the time-bar
defense even after the legislature repealed the repose provision. In other cases, the courts held
that legislation enacted specifically to revive time-barred actions violated the due process
rights of defendants and was not allowed. Sepmeyer v. Holman, 162 Ill. 2d 249, 255-56 (1994);
2
Plaintiffs’ reference to a “vested” right of repose is somewhat misguided. In Doe A., we held that
Commonwealth Edison Co. v. Will County Collector, 196 Ill. 2d 27, 47 (2001), “switched the focus of
the first step of the retroactivity analysis from ‘vested rights’ to legislative intent,” but did not overturn
the established rule that a time-barred claim may not be revived through subsequent legislative action.
Doe A., 234 Ill. 2d at 411.
3
This argument does not apply to Hayashi, who was convicted in 2007.
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Wilson v. All-Steel, Inc., 87 Ill. 2d 28, 40-42 (1981) (citing Board of Education of Normal
School District v. Blodgett, 155 Ill. 441 (1895)). By contrast, here, the legislature did not affect
the statutory limitations or repose provisions in section 22 of the Medical Practice Act when it
enacted section 2105-165 of the Department of Professional Regulation Law. Plaintiffs’ rights
to their repose defenses were not changed or removed. The plain language of the Medical
Practice Act states that the limitations and repose provisions apply only to proceedings
governed by the Medical Practice Act. 225 ILCS 60/22(A) (West 2012). Plaintiffs’ licenses
were not revoked pursuant to the Medical Practice Act. The time-bar defenses on which
plaintiffs rely have no applicability to revocation proceedings under section 2105-165, which
does not contain a statute of limitations or statute of repose.
¶ 36 Plaintiffs’ claim that repose defenses are “vested rights” which cannot be changed or
impaired through enacting new licensing requirements in a separate statutory code section is
akin to arguing that a license is a “vested” right free from an expectation of legislative
interference. As we have explained, professional licenses are subject to ongoing regulation by
the legislature within the bounds of substantive due process. See Potts, 128 Ill. 2d at 333. In
this case, the legislature has chosen to regulate the medical profession by providing that health
care professionals convicted of certain criminal offenses are per se unfit to practice their
professions and are subject to mandatory revocation of their licenses. Section 2105-165 is not
governed by the limitations and repose provisions in section 22 of the Medical Practice Act.
¶ 37 III. Procedural Due Process
¶ 38 Plaintiffs next contend that the mandatory, permanent revocation of their licenses without a
hearing pursuant to the Act is unconstitutional on its face in that it violates procedural due
process. A statute is facially invalid only if no set of circumstances exists under which it would
be valid. Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 305-06 (2008).
¶ 39 The Act expressly states that no hearing is allowed prior to the mandatory license
revocation proceedings. 20 ILCS 2105/2105-165(a) (West 2012). The administrative
regulations provide that, upon the mailing of a notice from the Department indicating an intent
to issue a permanent revocation order, licensees have 20 days to present a written response
contesting the Department’s action. 68 Ill. Adm. Code 1130.100(b) (2013). Any written
response must include supporting documentation and shall only be considered by the
Department for one of the following reasons: (1) that the licensee has been incorrectly
identified as the person with the conviction; (2) that the licensee’s conviction has been vacated,
overturned, or reversed, or a pardon has been granted; or (3) that the licensee’s conviction is
not a disqualifying conviction. Id. Once a permanent revocation order has been issued, the only
recourse for licensees is to request that the revocation order be vacated on the grounds that: (1)
the charges upon which the revocation order is based have been dropped; (2) the licensee has
not been convicted of the charges; or (3) the licensee’s conviction upon which the revocation
order is based has been vacated, overturned, or reversed. 20 ILCS 2105/2105-165(e) (West
2012).
¶ 40 Administrative proceedings are governed by the fundamental principles of due process of
law. Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 92 (1992).
Due process is a flexible concept which “requires only such procedural protections as
fundamental principles of justice and the particular situation demand.” Id. An administrative
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proceeding need not involve a hearing in the nature of a judicial proceeding in order to comply
with due process. Id. Courts should consider the following factors in evaluating a due process
claim: (1) the private interest that will be affected by the official action; (2) the risk of an
erroneous deprivation of such interest and the value, if any, of any additional or substitute
procedural safeguards; and (3) the government’s interest, including the administrative burdens
that any additional or substitute procedural safeguards would entail. People ex rel. Birkett v.
Konetski, 233 Ill. 2d 185, 201 (2009); People ex rel. Eppinga v. Edgar, 112 Ill. 2d 101, 107
(1986) (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).
¶ 41 The private interest affected by the Act is a medical or other health care license, which this
court has held is a property right within the meaning of the constitutional guarantees of due
process of law. Smith v. Department of Registration & Education, 412 Ill. 332, 340-41 (1952).
Under the second factor, we agree with the appellate court below that the risk that a license
may be revoked erroneously is not great. 2013 IL App (1st) 121142, ¶ 19. “[T]he 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.” Id. See also Eppinga, 112 Ill. 2d at 108-10 (court
held that the risk of the erroneous deprivation of a driver’s license in DUI case was low
“because the basis of the [license] revocation, i.e., the suspensions and convictions, were facts
simply recorded and were not by their nature subject to subjective or differing interpretations”
(citing Dixon v. Love, 431 U.S. 105, 113 (1977))). To protect themselves from erroneous
revocation due to clerical error, licensees may file a written objection under one of the
enumerated grounds within 20 days of the Department’s notice of intent (68 Ill. Adm. Code
1130.100(b) (2013)) or may request vacation of a revocation order if their conviction has been
vacated or overturned. 20 ILCS 2105/2105-165(e) (West 2012). Beyond that, section
2105-165 simply does not allow the Department to inquire into any of the circumstances
surrounding licensees’ convictions. The fact of the conviction itself triggers the revocation of a
health care license under the Act. Under the third due process factor, the State’s interest in
protecting the health and safety of its citizens by preventing individuals convicted of sexual
offenses or batteries against their patients from practicing medicine is substantial. Any
additional procedures would add to the Department’s administrative and fiscal burdens with no
added benefit to plaintiffs.
¶ 42 Where a licensee concedes the fact of a conviction for one of the qualifying offenses listed
in the Act, and does not claim eligibility for vacation of a revocation order based on any of the
grounds listed in subsection (e) (20 ILCS 2105/2105-165(e) (West 2012)), there are no issues
to be resolved at a prerevocation hearing. Plaintiffs contend that a fair hearing would allow
licensees to contest their innocence to the charges upon which their convictions were based,
argue that the judge or jury in their criminal case reached an incorrect result, or claim bias,
concealed motive, or ineffective assistance of counsel. We presume, however, that licensees
convicted of a qualifying offense have received due process in the underlying criminal
proceedings, during which they had the opportunity to contest the factual and legal bases for
their criminal charges, present evidence, question witnesses, and present grounds for appeal.
Plaintiffs do not suggest any additional grounds which could have been raised or evidence
which could have been presented at a prerevocation hearing. After considering the relevant
factors, we find that plaintiffs have received all of the process that they are due and have failed
to allege a procedural due process violation either facially or as applied.
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¶ 43 A separate argument related to procedural due process was raised for the first time in one of
plaintiffs’ reply briefs and addressed again at oral arguments in this case. Plaintiff contends
that a prerevocation hearing is necessary in order to establish the existence of a question of
fact, i.e., whether a criminal battery was committed “against any patient in the course of patient
care or treatment” (20 ILCS 2105/2105-165(a)(2) (West 2012)). Plaintiffs have forfeited this
argument by failing to raise it in their petitions for leave to appeal or in their opening briefs.
Accordingly, the argument was not properly preserved for our review. See BAC Home Loans
Servicing, LP v. Mitchell, 2014 IL 116311, ¶¶ 22-23; Ill. S. Ct. R. 315(c)(3) (eff. July 1, 2013)
(a petition for leave to appeal shall contain “a statement of the points relied upon in asking the
Supreme Court to review the judgment of the Appellate Court”); Ill. S. Ct. R. 341(h)(7) (eff.
Feb. 6, 2013) (points not argued in the appellant’s brief “are waived and shall not be raised in
the reply brief, in oral argument, or on petition for rehearing”).
¶ 44 IV. Res Judicata
¶ 45 Plaintiffs argue that the revocation proceedings pursuant to the Act are barred by the
doctrine of res judicata based on the Department’s previous decisions to discipline their
licenses based on their criminal convictions.4 They contend that the Department’s disciplinary
orders were judgments which barred the Department from further punishing them for the same
conduct. “Res judicata promotes judicial economy by preventing repetitive litigation and also
protects parties from being forced to bear the unjust burden of relitigating essentially the same
case.” Arvia v. Madigan, 209 Ill. 2d 520, 533 (2004). For res judicata to apply, three
requirements must be met: (1) a final judgment on the merits rendered by a court of competent
jurisdiction; (2) identity of causes of action; and (3) identity of parties or their privies. Hudson
v. City of Chicago, 228 Ill. 2d 462, 470-71 (2008). The party invoking the doctrine bears the
burden of showing that res judicata applies. Hernandez v. Pritikin, 2012 IL 113054, ¶ 41. Our
review is de novo. Morris B. Chapman & Associates, Ltd. v. Kitzman, 193 Ill. 2d 560, 565
(2000).
¶ 46 Even if we were to assume that the previous disciplinary proceedings brought by the
Department pursuant to the Medical Practice Act were “judicial in nature,” and therefore
constituted a final judgment on the merits rendered by a court of competent jurisdiction
(Crossroads Ford Truck Sales, Inc. v. Sterling Truck Corp., 2011 IL 111611, ¶ 56), plaintiffs
must fail because there is no identity of causes of action between the two proceedings. A cause
of action is defined by the facts which give rise to a right to relief. Wilson v. Edward Hospital,
2012 IL 112898, ¶ 10. “[S]eparate claims will be considered the same cause of action for
purposes of res judicata if they arise from a single group of operative facts, regardless of
whether they assert different theories of relief.” River Park, Inc. v. City of Highland Park, 184
Ill. 2d 290, 311 (1998). “The rule in Illinois is that res judicata extends only to the facts and
conditions as they were at the time a judgment was rendered. When new facts or conditions
intervene before a second action, establishing a new basis for the claims and defenses of the
parties respectfully, the issues are no longer the same, and the former judgment cannot be
pleaded as a bar in a subsequent action.” Northern Illinois Medical Center v. Home State Bank
of Crystal Lake, 136 Ill. App. 3d 129, 144 (1985) (citing Ropacki v. Ropacki, 354 Ill. 502,
4
This argument does not apply to Jafari, who was not disciplined by the Department as a result of
his conviction.
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506-07 (1933), and Chicago Title & Trust Co. v. County of Cook, 120 Ill. App. 3d 443, 454
(1983)).
¶ 47 Res judicata does not apply in the circumstances presented by plaintiffs because the facts,
conditions, and issues involved in the disciplinary proceedings pursuant to the Medical
Practice Act were different from those in the revocation proceedings. At the time the
Department imposed its disciplinary orders, Illinois law did not require revocation for the
particular offenses listed in the Act. The Department could not have enforced section 2105-165
against plaintiffs’ licenses because the Act did not exist. The revocation proceedings simply do
not qualify as a “relitigation” of the same case. See Arvia, 209 Ill. 2d at 534.
¶ 48 Plaintiffs assert that their prior administrative discipline and reinstatement of their licenses
created a “judicially vested right” in their entitlement to practice medicine upon which they
had a right to rely. See People ex rel. Allied Bridge & Construction Co. v. McKibbin, 380 Ill.
63, 66-67 (1942) (right to transfer tax credits arising under a statute and decreed by a court of
competent jurisdiction created a vested right upon which the petitioners could rely despite a
subsequent change in the law disallowing the credits). Unlike the circumstances in McKibbin,
however, there was no vested right created by the prior disciplinary proceedings. As we have
established, plaintiffs have no vested right in their health care licenses, nor do they have a right
to be free from subsequent legislation which changes the eligibility standards for licenses.
While res judicata may bar the Department from disciplining plaintiffs’ licenses again under
the Medical Practice Act based on their convictions, res judicata does not preclude the
Department from revoking plaintiffs’ licenses pursuant to section 2105-165.
¶ 49 V. Additional Arguments
¶ 50 Plaintiffs’ remaining arguments based on double jeopardy, bill of attainder, ex post facto,
and “takings” grounds are mentioned briefly in only one of plaintiffs’ briefs. The arguments
are not developed. We decline to address these issues since the parties have failed to apply
these constitutional doctrines to the circumstances of their cases. See Ill. S. Ct. R. 341(h)(7)
(eff. Feb. 6, 2013) (argument in an appellant’s brief “shall contain the contentions of the
appellant and the reasons therefor, with citation of the authorities and the pages of the record
relied on. *** Points not argued are waived and shall not be raised in the reply brief, in oral
argument, or on petition for rehearing”); Bartlow v. Costigan, 2014 IL 115152, ¶ 52 (holding
that arguments raised in a cursory fashion which are not fully briefed and argued are forfeited
by the parties); Vancura v. Katris, 238 Ill. 2d 352, 370 (2010) (noting that an issue “merely
listed or included in a vague allegation of error is not ‘argued’ ” and does not satisfy Supreme
Court Rule 341(h)).
¶ 51 CONCLUSION
¶ 52 For the foregoing reasons, we affirm the judgment of the appellate court, which affirmed
the circuit court’s judgments holding that plaintiffs’ complaints were properly dismissed
pursuant to section 2-615 of the Code of Civil Procedure.
¶ 53 Affirmed.
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