Consiglio v. Dep't of Fin. & Prof'l Regulation

• Citation: 988 N.E.2d 1020,2013 IL App (1st) 121142,370 Ill.Dec. 664
• Decision Date: 03 May 2013
• Docket Number: Docket Nos. 1–12–1142,1–12–1143,1–12–1197,1–12–1242 cons.
• Parties: Angelo CONSIGLIO, M.D., 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. 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.
• Court: United States Appellate Court of Illinois

2013 IL App (1st) 121142
988 N.E.2d 1020
370 Ill.Dec. 664

Angelo CONSIGLIO, M.D., 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.
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.

Docket Nos. 1–12–1142, 1–12–1143, 1–12–1197, 1–12–1242 cons.

Appellate Court of Illinois,
First District, First Division.

April 8, 2013.
Rehearing Denied May 2, 2013.
Rehearing Denied May 3, 2013.

[988 N.E.2d 1026]

Bruno & Weiner, of Chicago. (Edward F. Bruno and Joseph E. Bruno, of counsel), for appellants.

Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro, Solicitor General, and Nadine Wichern, Assistant Attorney General, of counsel, for appellees.

OPINION
Presiding Justice HOFFMAN delivered the judgment of the court, with opinion.

[370 Ill.Dec. 670]¶ 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 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 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 [370 Ill.Dec. 671]

[988 N.E.2d 1027]

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 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 three 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. [370 Ill.Dec. 672]

[988 N.E.2d 1028]

Oliveira v. Amoco Oil Co., 201 Ill.2d 134, 147, 267 Ill.Dec. 14, 776 N.E.2d 151 (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, 239 Ill.Dec. 750, 714 N.E.2d 1047 (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, 199 Ill.Dec. 467, 634 N.E.2d 306 (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, 305 Ill.Dec. 897, 856 N.E.2d 1048 (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, 153 Ill.Dec. 259, 566 N.E.2d 1365 (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)...