Ardt v. Department of Professional Regulation

• Decision Date: 25 July 1991
• Docket Number: 1-90-2579,Nos. 1-90-0797,s. 1-90-0797
• Citation: 578 N.E.2d 128,218 Ill.App.3d 61
• Parties: , 161 Ill.Dec. 1 Edward W. ARDT, Plaintiff-Appellee, v. DEPARTMENT OF PROFESSIONAL REGULATION, Defendant-Appellant. Edward W. ARDT, Plaintiff-Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 128

578 N.E.2d 128

218 Ill.App.3d 61, 161 Ill.Dec. 1

Edward W. ARDT, Plaintiff-Appellee, v. DEPARTMENT OF PROFESSIONAL REGULATION, Defendant-Appellant.

Edward W. ARDT, Plaintiff-Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, Defendant-Appellee.

Nos. 1-90-0797, 1-90-2579.

Appellate Court of Illinois First District, Fourth Division.

July 25, 1991.

Neil F. Hartigan, Atty. Gen., Robert J. Ruiz, Sol. Gen., Chicago (Ann Plunkett-Sheldon, Asst. Atty. Gen., of counsel), for defendant-appellant.

James D. Goodman, Chicago, for plaintiff-appellee, plaintiff-appellant.

Roland W. Burris, Atty. Gen., Rosalyn B. Kaplan, Sol. Gen., Chicago (Ann Plunkett-Sheldon, Asst. Atty. Gen., of counsel), for defendant-appellee.

Presiding Justice JIGANTI delivered the opinion of the court:

The Illinois Department of Professional Regulation filed a complaint against Edward Ardt, a practicing dentist, alleging violations of the Illinois Dental Practice Act. (Ill.Rev.Stat.1987, ch. 111, par. 2301 et seq. (repealed by Pub. Act 81-999, § 4.8, eff. December 31, 1995) (the Regulatory Agency Sunset Act, eff. September 22, 1979).) Specifically, the Department of Professional Regulation asserted that Ardt had violated certain advertising provisions of the Act. At the conclusion of the administrative proceedings, Ardt was determined to have been in violation of the Dental Practice Act. He was placed on probation for two years during which time he was to submit copies of all his advertisements to the Department. He was also ordered to pay a $500 fine.

Ardt filed a complaint in the circuit court for administrative review of the Department's decision. In his complaint, Ardt challenged the validity of the advertising provisions under which he was charged, asserting among other challenges that the advertising provisions violated his first amendment right to free speech. Ardt also filed a petition for a temporary restraining order, requesting that the court stay the sanctions imposed by the Department pending review. The circuit court granted Ardt's petition for a restraining order. The Department filed an interlocutory appeal, arguing that the circuit court erred in granting Ardt's petition to stay the sanctions. The interlocutory appeal was later consolidated with Ardt's appeal from the decision of the circuit court affirming on the merits the Department's determination.

The Illinois Department of Professional Regulation bases its assertion that the circuit court exceeded its authority in entering a stay of the sanctions the Department had imposed on a provision of the Illinois Dental Practice Act that states the following:

"During the pendency and hearing of any and all judicial proceedings incident to such disciplinary action any sanctions imposed upon the accused by the Department shall remain in full force and effect." Ill.Rev.Stat.1987, ch. 111, par. 2332.

It is the Department's contention that because the circuit court's jurisdiction to review final administrative decisions of the Illinois Department of Professional Regulation is granted to it by statute, the limits of the court's jurisdiction are also defined by statute. Specifically, the Department argues that any authority the circuit court has to enter stays in administrative matters emanates only from the legislature and may therefore be restricted by the legislature. For support the Department cites to Blumstein v. Clayton (1985), 139 Ill.App.3d 611, 94 Ill.Dec. 299, 487 N.E.2d 1176. In Blumstein, a physician, who had his license temporarily suspended following an administrative proceeding, brought an interlocutory appeal from the circuit court's denial of his petition for a stay of sanctions pending review. The Blumstein court affirmed the circuit court's ruling denying a stay based on a provision of the Medical Practice Act that is identical in substance to the provision of the Dental Practice Act quoted above. Ill.Rev.Stat.1985, ch. 111, par. 4447 (repealed by Pub.Act 81-999, § 4.4, eff. October 1, 1987) (the Regulatory Agency Sunset Act, eff. September 22, 1979).

Citing to article VI, section 9, of the Illinois Constitution, the court in Blumstein noted that the courts " 'shall have such power to review administrative action as provided by law.' " (Ill.Const.1970, art. VI, § 9 (quoted in Blumstein, 139 Ill.App.3d at 615, 94 Ill.Dec. at 301, 487 N.E.2d at 1178).) The Blumstein court reasoned that administrative review is fundamentally different from original jurisdiction and that when a court is exercising statutory jurisdiction it is not concurrently exercising original jurisdiction. In support of this proposition the court in Blumstein quoted the case of Fredman Brothers Furniture Co., Inc. v. Department of Revenue (1985), 109 Ill.2d 202, 210, 93 Ill.Dec. 360, 362-63, 486 N.E.2d 893, 895-96, wherein the Illinois Supreme Court stated that "when a court is in the exercise of special statutory jurisdiction, that jurisdiction is limited to the language of the act conferring it and the court has no powers from any other source."

In Fredman, the supreme court addressed a substantive right unknown to common law, that is, the right to have a circuit court review the final administrative decision concerning the levy of a tax assessment. In the present case, the right that Ardt seeks to preserve by invoking the injunctive power of the court is the fundamental right of freedom of speech. The Department, in arguing the merits of this case, has in fact recognized that one of the issues is whether the advertising portions of the Dental Practice Act unconstitutionally abridge Ardt's freedom of speech. That the regulations under scrutiny may be found to be a permissible restriction of Ardt's right does not detract from the threshold issue of whether the circuit court, in the meantime and in the face of legislation to the contrary, has the jurisdiction to issue a stay to preserve Ardt's right.

We believe that it has. The court's authority in this regard emanates, not from statute, but from the court's general equitable powers. It has long been recognized that equity may be invoked to protect personal liberties guaranteed by the Constitution. (See Kenyon v. City of Chicopee (1946), 320 Mass. 528, 70 N.E.2d 241; 175 A.L.R. 430 § 15, at 466 (1948); D. Dobbs, Remedies § 2.11 (1973).) In the present case, Ardt asserted in the circuit court that the provisions of the Dental Practice Act under which he was sanctioned improperly abridged his constitutionally protected freedom of speech. He requested the circuit court to impose a stay of sanctions while he pursued the substantive merits of his argument. Whether the court properly exercised its authority in granting Ardt's motion for a stay is a question distinct from whether the court had the authority to do so. (See 175 A.L.R. 430 § 3, at 446 (1948).) In the present case, the question of the court's proper exercise of authority is a moot issue, as during the pendency of the interlocutory appeal the court reached a decision on the merits. However, to the extent that section 32 of the Dental Practice Act restricts the equitable power of the court to issue a stay where appropriate, we agree with plaintiff Ardt that the statute improperly infringes upon the power of the judiciary. See generally Strukoff v. Strukoff (1979), 76 Ill.2d 53, 27 Ill.Dec. 762, 389 N.E.2d 1170 (the legislature may not unduly infringe upon the inherent power of the judiciary to adjudge, determine and render a judgment).

The primary issue that Ardt raises in his appeal of the merits is whether the provisions of the Dental Practice Act governing a practitioner's advertising are an unconstitutional violation of Ardt's freedom of speech. Under section 45 of the Dental Practice Act, a dentist may advertise certain information regarding his services, including information "which a reasonable person might regard as relevant in determining whether to seek the dentist's services." (Ill.Rev.Stat.1987, ch. 111, par. 2345.) Section 45 prohibits, however, advertising statements that contain "false, fraudulent, deceptive or misleading material or guarantees of success * * *." (Ill.Rev.Stat.1987, ch. 111, par. 2345.) Section 45 specifies that it is unlawful for a dentist to use claims of "superior quality of care to entice the public," or "[t]o advertise in any way to practice dentistry without causing pain * * *." Ill.Rev.Stat.1987, ch. 111, par. 2345.

Also in effect during the time Ardt publicized his allegedly improper advertising was an administrative regulation promulgated pursuant to the Dental Practice Act. The then existing regulation stated that "[a]dvertising may not use language suggesting a dental specialty which does not exist under the Dental Practice Act. Example. Family Dentistry, Family Practice." (68 Ill.Adm.Code § 1220.421 (1985 Supp.).) The quoted section of the regulation was later changed to read as follows:

"Advertising shall not use language suggesting a dental specialty which is not specified in section 1220.320 of this part unless it contains the disclaimer in subsection (g) above [licensed to practice as a general dentist * * *]. Examples of language requiring disclaimer: family dentistry, * * *." (68 Ill.Adm.Code § 1220.421 (eff. March 16, 1989).)

Ardt's advertising, which he placed into publication in the spring of 1988, offered "affordable * * * family dentistry," "quality dentistry," and "total comfort," all terms the Department of Regulation objects to as violative of the Dental Practice Act.

The initial question we must determine is which administrative regulation regarding the use of the term "family dentistry" is to apply to Ardt. The Illinois Department of Regulation agrees that the advertising in question took place during the time the old regulation which absolutely prohibited the use of the word "family dentistry" was in effect. However, the Department asserts that Ardt was charged under the new regulation which allows a...