Desnick v. Department of Professional Regulation, 78422

Citation665 N.E.2d 1346,171 Ill.2d 510,216 Ill.Dec. 789
Decision Date18 April 1996
Docket NumberNo. 78422,78422
Parties, 216 Ill.Dec. 789, 64 USLW 2687, 24 Media L. Rep. 1833 James H. DESNICK, M.D., Appellee, v. The DEPARTMENT OF PROFESSIONAL REGULATION et al., Appellants.
CourtSupreme Court of Illinois

Rehearing Denied June 3, 1996.

James E. Ryan, Attorney General, Springfield (Barbara A. Preiner, Solicitor General, and Brian F. Barov, Assistant Attorney General, Chicago, of counsel), for appellants.

Dan K. Webb, Steven F. Molo, Julie A. Bauer and Stephen V. D'Amore, of Winston & Strawn, Chicago, for appellee.

Justice FREEMAN delivered the opinion of the court:

This case concerns whether section 22(A)(24) of the Illinois Medical Practice Act of 1987 (Ill.Rev.Stat.1991, ch. 111, par. 4400-1 et seq.) may be constitutionally applied to regulate commercial speech by plaintiff (U.S. Const., amends. I, XIV; Ill. Const. 1970, art. I, § 4), and whether the provision is also unconstitutionally vague on its face (U.S. Const., amends. I, XIV; Ill. Const. 1970, art. I, § 2). We conclude that, contrary to the circuit court's finding below supporting the grant of a temporary restraining order, application of the provision to regulate plaintiff's speech in these circumstances is constitutional, and that the provision is not vague on its face. For reasons which follow, we reverse the judgment of the circuit court of Cook County, granting the plaintiff, James H. Desnick, M.D., a temporary restraining order on the basis of the invalidity of section 22(A)(24), and remand for further proceedings.

Background

In 1992, defendants, the Illinois Department of Professional Regulation (Department) and its director, Nikki M. Zollar, commenced disciplinary proceedings against plaintiff, Dr. James H. Desnick, an ophthalmologist licensed to practice medicine in Illinois. The multicount disciplinary complaint sought the suspension or revocation of Dr. Desnick's license or other disciplinary action on several grounds, including the alleged violation of section 22(A)(24) of the Medical Practice Act (Act).

Section 22(A)(24) provides:

"The Department may revoke, suspend, place on probationary status, or take any other disciplinary acts as the Department may deem proper with regard to the license or visiting professor permit of any person issued under this Act to practice medicine, or to treat human ailments without the use of drugs and without operative surgery upon any of the following grounds:

* * * * * *

Solicitation of professional patronage by any corporation, agents or persons, or profiting from those representing themselves to be agents of the licensee." Ill.Rev.Stat.1991, ch. 111, par. 4400-22(A)(24).

According to the pleadings, Desnick violated this provision by utilizing a telemarketing firm to telephone persons aged 65 years and over and offer them a free eye examination appointment and free transportation to the Desnick Eye Center. These services were offered provided the persons answered the telemarketer's scripted questions, indicating they had not previously visited the Desnick Eye Center; did not belong to a health maintenance organization (HMO); did not have a personal ophthalmologist, but were insured under Medicare. (See Appendix.)

Shortly thereafter, Desnick filed this action in the circuit court of Cook County, requesting declaratory judgment and permanent injunctive relief. The action challenged section 22(A)(24) on grounds that the provision was unconstitutionally vague and overbroad and also violated free speech under the federal and state constitutions. Desnick immediately moved for both a preliminary injunction and a temporary restraining order to prohibit defendants from enforcing section 22(A)(24), pending a determination on the merits. In December 1992, the circuit court entered a temporary restraining order enjoining defendants from effectively enforcing section 22(A)(24) against Desnick.

In May 1993, defendants filed their first-amended complaint in the disciplinary proceedings, which realleged in count XVI that Desnick had violated section 22(A)(24).

In October 1994, Desnick sought leave to file an amended complaint because defendants reasserted a violation of section 22(A)(24) in their first-amended disciplinary complaint. Desnick's amended complaint requested that section 22(A)(24) be declared unconstitutional and defendants be permanently enjoined from enforcing the provision. Desnick also moved on that same day for a preliminary injunction to enjoin defendants from enforcing section 22(A)(24) against him, pending a resolution of the case on the merits. On December 7, 1994, Desnick was granted leave to and did immediately file his amended complaint. On December 13, 1994, defendants moved to dismiss the amended complaint for lack of subject matter jurisdiction based on sovereign immunity.

On December 22, 1994, following a hearing, the circuit court found that Desnick satisfied the requirements for a preliminary injunction. The court found, inter alia, that it was reasonably likely that Desnick would succeed on the merits of his complaint because he had demonstrated that section 22(A)(24) violates the free speech provisions of the federal and state constitutions and was void for vagueness in violation of both constitutions' due process provisions. The trial court granted Desnick's motion for a preliminary injunction and enjoined defendants from prosecuting count XVI, "pending a determination of the merits of [the] action." In that order, also, the court denied defendants' motion to dismiss the complaint.

On January 5, 1995, defendants filed a notice of appeal to this court, pursuant to Supreme Court Rule 302(a), seeking reversal of the circuit court's December 22, 1994, order, denying their motion to dismiss, and a finding that section 22(A)(24) of the Act is constitutional as applied to Desnick's conduct. 134 Ill.2d R. 302(a).

Jurisdiction

Preliminarily, we consider our jurisdiction to review this matter. Supreme Court Rule 302(a)(1) allows for direct appeals to this court from final judgments of the circuit court in cases where a state statute is held invalid. See 134 Ill.2d R. 302(a)(1). Clearly, in this case, the circuit court effectively ruled that section 22(A)(24) was unconstitutional. The circuit court granted the preliminary injunction based on, inter alia, the finding that Desnick was likely to prevail on the merits of his complaint because he had shown section 22(A)(24) to be unconstitutional. Cf. Sommer v. Village of Glenview, 79 Ill.2d 383, 38 Ill.Dec. 170, 403 N.E.2d 258 (1980) (interpreting trial court's statements and order as holding state statute unconstitutional); Garcia v. Tully, 72 Ill.2d 1, 7, 17 Ill.Dec. 820, 377 N.E.2d 10 (1978) (trial court opinion and order found to apparently rest on finding state statute unconstitutional). An order granting a preliminary injunction, however, is an interlocutory order, which is normally appealable as a matter of right to the appellate court under Supreme Court Rule 307. See 134 Ill.2d R. 307.

Nevertheless, this court has jurisdiction to permit a direct appeal from other than final judgments. See Garcia, 72 Ill.2d at 7, 17 Ill.Dec. 820, 377 N.E.2d 10; 134 Ill.2d R. 302(b) (permitting appeal to be taken directly to supreme court in cases where the public interest requires expeditious determination). Further, where the order appealed from rests on a finding of a statute's unconstitutionality, this court has assumed jurisdiction under Rule 302(a), notwithstanding the finality requirement. Garcia, 72 Ill.2d 1, 17 Ill.Dec. 820, 377 N.E.2d 10. Consequently, we will review the matter.

Standard of Review

A party seeking a preliminary injunction must establish, inter alia, that he is likely to succeed on the merits. The decision to grant or deny a preliminary injunction rests within the sound discretion of the trial court, and a reviewing court will not disturb the decision absent a clear abuse of that discretion. See Chicago Health Clubs, Inc. v. Picur, 124 Ill.2d 1, 7-8, 124 Ill.Dec. 87, 528 N.E.2d 978 (1988).

First Amendment Challenge

Defendants first contend that the trial court erred by relying on the overbreadth doctrine, applicable to core first amendment speech, rather than relying on the framework set out in Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), that applies to commercial speech. Defendants secondarily contend that, under the Central Hudson framework, section 22(A)(24) may be constitutionally applied to prohibit Desnick's elderly Medicare recipient-targeted telephone solicitation, offering a free eye exam appointment and transportation to his clinic, because: (1) that solicitation does not constitute protected speech under the first amendment, and even if that solicitation is protected, section 22(A)(24) is (2) supported by the State's substantial interests in regulating the medical profession, in preventing overreaching by physicians, and in protecting its citizens' right to privacy; (3) directly and materially advances those interests; and (4) "narrowly drawn." See Central Hudson Gas, 447 U.S. at 565-66, 100 S.Ct. at 2351, 65 L.Ed.2d at 350-51 (referring to a four-part analysis).

Desnick contends his solicitation constitutes protected speech under the first amendment and that section 22(A)(24) may not be constitutionally applied to prohibit his solicitation because the restriction does not satisfy the three remaining prongs of the Central Hudson Gas test. Desnick also maintains that the trial court did not actually rely on the overbreadth doctrine, although he argued it.

Commercial speech consists of "expression related solely to the economic interests of the speaker and its audience." Central Hudson Gas, 447 U.S. at 561, 100 S.Ct. at 2349, 65 L.Ed.2d at 348. Prior to the mid-1970s, the Supreme Court took the position that the first amendment did not protect commercial speech. See ...

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