Krain v. Illinois Dept. of Professional Regulation

• Decision Date: 06 March 1998
• Docket Number: No. 1-96-2879,1-96-2879
• Citation: 295 Ill.App.3d 577,231 Ill.Dec. 396,696 N.E.2d 692
• Parties: , 231 Ill.Dec. 396 Lawrence S. KRAIN, M.D., Plaintiff-Appellant, v. ILLINOIS DEPARTMENT OF PROFESSIONAL REGULATION, Nikki M. Zollar, Acting Director, Illinois Department of Professional Regulation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 692

696 N.E.2d 692

295 Ill.App.3d 577, 231 Ill.Dec. 396

Lawrence S. KRAIN, M.D., Plaintiff-Appellant, v. ILLINOIS DEPARTMENT OF PROFESSIONAL REGULATION, Nikki M Zollar, Acting Director, Illinois Department of Professional Regulation, Defendants-Appellees.

No. 1-96-2879.

Appellate Court of Illinois First District, Sixth Division.

March 6, 1998.

As Modified on Denial of Rehearing

April 10, 1998.

William J. Harte, Ltd., Chicago (William J. Harte, Erik D. Gruber, Joan M. Mannix, of counsel), for Plaintiff-Appellant.

James E. Ryan, Attorney General, Barbara A. Preiner, Solicitor General, John P. Schmidt, Assistant Attorney General, Chicago, for Defendants-Appellees.

MODIFIED OPINION UPON DENIAL OF REHEARING

Justice ZWICK delivered the opinion of the court:

Plaintiff, Dr. Lawrence S. Krain, appeals from an order of the circuit court in which the court determined that it had no jurisdiction to consider Dr. Krain's section 2-1401 petition for post-judgment relief. See 735 ILCS 5/2-1401 (West 1996). We affirm.

On January 5, 1996, in an unpublished order (No. 1-93-4559), 277 Ill.App.3d 1099, 232 Ill.Dec. 625, 698 N.E.2d 716 (hereinafter, "Krain I "), this court reviewed an order of the circuit court which reversed an order of the Department of Professional Regulation (the Department). We found, contrary to the findings of the circuit court, that the Department had relied upon substantial evidence in determining Dr. Krain suffered from a mental disease or disability which resulted in his inability to practice medicine with reasonable skill and safety. See 225 ILCS 60/21(A)(3), (A)(27) (West 1996). Accordingly, we reversed the circuit court and affirmed the Department's determination that Dr. Krain's license to practice medicine should be suspended for a minimum of one year.

In July of 1996, approximately six months after our decision in Krain I, plaintiff filed a second action for administrative review in the circuit court. Plaintiff cited the discovery of certain "new evidence" which he claimed warranted new proceedings. ¹ Dr. Krain relied upon section 3-111(a)(7) of the Administrative Review Law (735 ILCS 5/3-111(a)(7)(1996)) which grants the circuit court the power to remand issues to the agency upon the ground of "newly discovered evidence" as the jurisdictional basis for his petition. The circuit court granted relief to Dr. Krain in the form of remand to the Department for reconsideration of the new evidence. The Department thereafter brought two interlocutory appeals of the circuit court's decision. We consolidated the Department's appeals and reversed the circuit court in a published opinion issued August 8, 1997, Krain v. Department of Professional Regulation, 291 Ill.App.3d 988, 225 Ill.Dec. 835, 684 N.E.2d 826 (1997) (hereinafter, "Krain II "). In that opinion, we held that section 3-111(a)(7) of the Administrative Review Law does not confer jurisdiction on the circuit court to reconsider administrative review proceedings once they have been concluded.

At the time we considered the Department's appeals in Krain II, we were aware, through references in the record and briefs, that Dr. Krain had asserted a section 2-1401 claim in the circuit court, in addition to relying upon section 3-111(a)(7) of the Administrative Review Law as a basis of circuit court jurisdiction. We were also aware that the circuit court determined that it was without jurisdiction to consider the section 2-1401 petition. Although Dr. Krain's brief indicated that an appeal of the section 2-1401 denial had been filed, neither the Department nor Dr. Krain sought to consolidate that appeal with the present case. Thus, in this appeal, we decide the question of whether the mechanisms provided by section 2-1401 of the Code of Civil Procedure apply to final administrative decisions. We hold they do not.

Section 2-1401 of the Code of Civil Procedure provides a mechanism whereby final judgments, decrees, and orders may be vacated more than 30 days after their entry. Although a section 2-1401 petition arises out of the same proceeding in which the order or judgment that it is directed to was entered, it is a collateral attack on the judgment. Ptaszek v. Michalik, 238 Ill.App.3d 72, 76, 179 Ill.Dec. 283, 606 N.E.2d 115 (1992); City of Des Plaines v. Scientific Machinery Movers, Inc., 9 Ill.App.3d 438, 442, 292 N.E.2d 154 (1972). In order to be granted relief under section 2-1401, the petitioner must show by a preponderance of the evidence (1) a meritorious defense or claim in the original action; (2) due diligence in pursuing the defense or claim in the trial court; and (3) due diligence in presenting the section 2-1401 petition. Smith v. Airoom, Inc., 114 Ill.2d 209, 102 Ill.Dec. 368, 499 N.E.2d 1381, (1986).

Dr. Krain argues that section 2-1401 of the Code of Civil Procedure is available not only to a litigant who seeks review in the circuit court of a final judgment initially rendered by that court, but also, of decisions made by the circuit court on administrative review. He cites for support the appellate court's decision in Rizzo v. Board of Fire and Police Commissioners, 11 Ill.App.3d 460, 297 N.E.2d 247 (1973), a case which is procedurally similar. In Rizzo, the court affirmed the decision of the circuit court granting post-judgment relief under section 72 of the Civil Practice Act, the precursor to section 2-1401, to an employee of the Chicago Police Department who wished to show that perjured testimony had been the basis of the administrative agency's decision against her, a decision made some three years before her petition was filed and which had been affirmed on appeal in Rizzo v. Board of Fire and Police Commissioners, 131 Ill.App.2d 229, 267 N.E.2d 7 (1971).

Dr. Krain's reliance on section 2-1401 is misplaced because when the General Assembly's adopted the Administrative Review Law it rendered that statute the exclusive method of challenging decisions issued by the Department. 735 ILCS 5/3-102 (West 1996). The courts are expressly precluded from granting any other statutory, equitable, or common law mode of review. Smith v. Department of Public Aid, 67 Ill.2d 529, 10 Ill.Dec. 520, 367 N.E.2d 1286 (1977) (construing precursor to Administrative Review Law, the Administrative Review Act). Thus, the Illinois decisions are clear that alternative methods of direct review or collateral attack of an agency decision such as that envisioned by section...