Gersch v. ILL. DEPT. OF PROFESSIONAL REG.

• Citation: 720 N.E.2d 672,242 Ill.Dec. 51,308 Ill. App.3d 649
• Decision Date: 05 November 1999
• Docket Number: No. 1-98-1291.,1-98-1291.
• Parties: Eugene R. GERSCH, Plaintiff-Appellant, v. ILLINOIS DEPARTMENT OF PROFESSIONAL REGULATION, and Nikki M. Zollar, Director of Illinois Department of Professional Regulation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

720 N.E.2d 672

308 Ill. App.3d 649

242 Ill.Dec. 51

Eugene R. GERSCH, Plaintiff-Appellant, v. ILLINOIS DEPARTMENT OF PROFESSIONAL REGULATION, and Nikki M. Zollar, Director of Illinois Department of Professional Regulation, Defendants-Appellees.

No. 1-98-1291.

Appellate Court of Illinois, First District, Sixth Division.

November 5, 1999.

David Blumenfeld, Ltd., Chicago (William C. Couglin, of counsel), for Appellant.

James E. Ryan, Attorney General, Chicago (Paul Racette, Assistant Attorney General, of counsel), for Appellees.

Presiding Justice ZWICK delivered the opinion of the court:

Plaintiff, Eugene R. Gersch, has appealed the circuit court's affirmance of a final administrative decision by the Illinois Department of Professional Regulation (the Department) which ordered a non-disciplinary cancellation of the plaintiff's registration as a licensed clinical social worker. The Department's administrative decision was premised upon the finding that plaintiff lacked the requisite educational qualifications for such a license. On appeal, plaintiff challenges the circuit court's ruling, asserting that (1) the Department's decision was against the manifest weight of the evidence, (2) the regulatory statute enacted in 1989 is unconstitutional, (3) the Department lacked the authority to issue a non-disciplinary cancellation of plaintiff's license, and (4) the doctrines of laches and estoppel preclude the Department from canceling plaintiff's license.

The record reveals that plaintiff began working as a social worker shortly after earning his bachelor's degree in 1959 and prior to the enactment of any regulatory statutes. In 1967, Illinois enacted the Social Worker's Registration Act, which regulated the licensure of social workers for the first time. That statute created two tiers of licensing. The lower tier was designated "registered social worker," and the higher tier was designated "certified social worker," which required a master's or doctorate degree in social work. This statute also included a grandfather clause, allowing licensure as a certified social worker to those practitioners who lacked an advanced educational degree, but had acquired sufficient clinical social work experience. Pursuant to that grandfather clause, plaintiff was licensed in 1969 as a "certified social worker" based upon his clinical social work experience, despite the fact that he had not earned a master's or a doctorate degree in social work.

Plaintiff's license remained in good standing when the Illinois legislature passed the Clinical Social Work and Social Work Practice Act (the Act) in 1989 (225 ILCS 20/1 et seq. (West 1996)). This statute paralleled the previous statute in that it also created two tiers of licensing. The lower tier was redesignated "licensed social worker," and the higher tier was redesignated "licensed clinical social worker." As with the prior statute, the higher tier, that of licensed clinical social worker, required a master's or doctorate degree in social work. In addition, a passing score on a required examination was necessary in order to obtain licensure at the higher tier. The 1989 statute contained a grandfather clause for those previously licensed as "registered social workers" under the lower-tier classification in the prior statute. However, no such exemption clause was included for those who, like plaintiff, had been licensed as "certified social workers" under the higher-tier classification.

Although plaintiff had not earned either a master's or doctorate degree, he submitted his application for licensure under the higher tier in 1989. His application, which accurately reflected his educational achievements, was approved by the Department, and he was permitted to sit for the necessary examination. Plaintiff took the exam twice and received a passing score the second time in June 1990. Thereafter, the Department issued plaintiff a license as a licensed clinical social worker under the higher tier specified in the 1989 Act.

In late 1994, the Department discovered that plaintiff's license had been erroneously issued, and the Department attempted to resolve the matter informally. However, those efforts were unsuccessful, and on May 30, 1995, the Department filed an administrative complaint against plaintiff. The Board adopted in its entirety the report and recommendation of the administrative law judge (ALJ), which found that plaintiff was not qualified for licensure as a licensed clinical social worker under the higher-tier classification. The ALJ also concluded that plaintiff had misrepresented his qualifications on his application for licensure. Accordingly, the ALJ recommended that plaintiff's license be rescinded and that he be issued a license as a licensed social worker under the lower-tier classification. On August 25, 1997, the Department issued a final administrative decision "canceling" plaintiff's license under the higher tier and ordering that he be issued a license under the lower tier.

Plaintiff sought administrative review of this decision, and the circuit court affirmed the Department's decision in its entirety.

We initially address plaintiff's claim that the circuit court erred in finding that the 1989 Act was constitutional. We review de novo the circuit court's decision with respect to a statute's constitutionality. People ex rel. Lumpkin v. Cassidy, 184 Ill.2d 117, 123, 234 Ill.Dec. 389, 703 N.E.2d 1 (1998); Brown's Furniture, Inc. v. Wagner, 171 Ill.2d 410, 420, 216 Ill.Dec. 537, 665 N.E.2d 795 (1996). The party challenging the validity of a statute bears the burden of clearly establishing any constitutional invalidity. A statute is presumed to be constitutional, and when construing a statute, a court should uphold the statute's validity if reasonably possible. Cassidy, 184 Ill.2d at 123, 234 Ill.Dec. 389, 703 N.E.2d 1; People v. Jeffries, 164 Ill.2d 104, 111, 207 Ill.Dec. 21, 646 N.E.2d 587 (1995).

Plaintiff argues that the Act violates his substantive due process rights because it failed to include a "grandfather" clause exempting him from complying with the advanced educational requirements in the licensing statute. Defendants counter this argument by asserting that the legislature was under no constitutional obligation to include a "grandfather" exception in the 1989 Act because the enactment of that statute was not the first time the profession had been regulated. We note, parenthetically, that the plaintiff and the Department rely primarily upon the same cases in support of their respective arguments.

According to the cases cited by the parties, in the context of the regulation of professions and occupations, a "grandfather" clause is a special provision made for the existing practitioner in a statute which regulates a profession for the first time. Miller v. Department of Professional Regulation, 276 Ill.App.3d 133, 140, 213 Ill. Dec. 53, 658 N.E.2d 523 (1995); Taylor v. Hayes, 131 Ill.App.2d 305, 309, 264 N.E.2d 814 (1970). "`The purpose of an exception or grandfather clause is to exempt from the statutory regulations imposed for the first time on a trade or profession those members thereof who are then engaged in the newly regulated field on the theory that they who have acceptably followed such profession or trade for a period of years, or who are engaged therein on a certain date, may be presumed to have the qualifications which subsequent entrants to the field must demonstrate by examination. Watson v. Maryland, 218 U.S. 173, 30 S.Ct. 644, 54 L.Ed. 987 [1910]; [citations]'" Taylor, 131 Ill.App.2d at 309, 264 N.E.2d 814, quoting State ex. rel. Krausmann v. Streeter, 226 Minn. 458, 33 N.W.2d 56 (1948).

In Berger v. Board of Psychologist Examiners, 521 F.2d 1056 (D.C.Cir.1975), the United States Court of Appeals, quoted that portion of the Taylor opinion which held that "`the right of the plaintiff to pursue his profession was fixed during the pre-regulatory period[,] and any subsequent legislation affecting his profession must be reasonable as it affects his special situation.'" Berger, 521 F.2d at 1063, quoting Taylor, 131 Ill.App.2d at 311, 264 N.E.2d 814.

We note, however, that the holdings of these cases were premised upon the outmoded "doctrine of vested rights" and upon the conclusion that an individual has a cognizable due process right in the continued practice of his or her profession. See Miller, 276 Ill.App.3d at 141, 213 Ill. Dec. 53, 658 N.E.2d 523. None of these cases applied current constitutional analysis, which looks to whether the affected right is fundamental and recognizes the State's police power, i.e., the government's inherent right to enact legislation protecting the health, safety, and welfare of its citizens. See Rios v. Jones, 63 Ill.2d 488, 496-97, 348 N.E.2d 825 (1976). Thus, the question of whether the right to pursue one's profession constitutes a fundamental right has not been addressed in any of the cases cited above or in the briefs filed by the parties.

Substantive due process protects fundamental liberty interests against infringement by the government. Reno v. Flores, 507 U.S. 292, 301-02, 113 S.Ct. 1439, 1447, 123 L.Ed.2d 1, 16 (1993); Collins v. City of Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 1068, 117 L.Ed.2d 261, 273 (1992). When confronted with a constitutional challenge premised upon due process grounds, the threshold inquiry is whether the challenged statute purports to restrict or regulate a fundamental right. Potts v. Illinois Department of Registration & Education, 128 Ill.2d 322, 329, 131 Ill.Dec. 584, 538 N.E.2d 1140 (1989); Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786, 798 (1982).

If the statute restricts a fundamental right, it must be examined under strict scrutiny. Plyler, 457 U.S. at 216-17, 102 S.Ct. at 2394-95, 72 L.Ed.2d at 798-99. Pursuant to that analysis, legislation which significantly interferes with the exercise of a fundamental right will be upheld...