Morgan v. Dept. of Fin. & Prof. Regulation

• Decision Date: 15 June 2007
• Docket Number: No. 1-06-0266.,1-06-0266.
• Parties: Russell MORGAN, Plaintiff-Appellant, v. The DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

871 N.E.2d 178

Russell MORGAN, Plaintiff-Appellant, v. The DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION, Defendant-Appellee.

No. 1-06-0266.

Appellate Court of Illinois, First District, Sixth Division.

June 15, 2007.

Rehearing Denied July 23, 2007.

Alan Rhine, Law Offices of Alan Rhine, Chicago, for Appellant.

Lisa Madigan, Attorney General, Gary Feinerman, Solicitor General, Jan E. Hughes, Assistant Attorney General, Chicago, for Appellee.

Justice JOSEPH GORDON delivered the opinion of the court:

Plaintiff, Russell Morgan, brought a complaint for administrative review challenging the Illinois Department of Financial and Professional Regulation's (Department) summary suspension of his license as a clinical psychologist and the Department's ultimate imposition of a 90-day suspension and indefinite probation. The circuit court affirmed the Department and denied Morgan's subsequent motion for reconsideration. Morgan now appeals those orders. For the reasons that follow, we reverse.

I. BACKGROUND

On November 4, 2003, the Department filed a one-count administrative complaint against Morgan, a licensed clinical psychologist, alleging that he engaged in unethical, unauthorized, or unprofessional sexual conduct during his treatment of a female patient, E.S. The complaint averred that Morgan's conduct constituted grounds for suspension of his "certificate of registration" pursuant to section 15(7) of the Clinical Psychologist Licensing Act (225 ILCS 15/15(7) (West 2002)). Concurrent with its complaint, the Department filed a petition with the director of the Department, Fernando E. Grillo (Director), to suspend Morgan's license.

On the same day that the Department filed its complaint, the Director held a telephonic proceeding in which the Department's attorney questioned William Disselhorst, a health service investigator for the Department. Disselhorst testified regarding interviews he conducted with E.S. and Morgan, as well as his examination of Morgan's office/residence.

Director Grillo then issued an order, dated November 4, 2003, suspending Morgan's license to practice as a clinical psychologist pending proceedings before the Clinical Psychologist Licensing and Disciplinary Board of the State of Illinois (Board). The Director found that "public interest, safety and welfare imperatively require[d] emergency action to prevent the continued practice of Clinical Psychology by [Morgan]."

The Department filed an amended administrative complaint on November 26, 2003, to include additional charges of gross negligence in relation to Morgan's behavior toward E.S., and to allege unprofessional conduct and gross negligent in relation to three other clients of Morgan: J.P., D.M., and L.L. On December 2, 2003, Morgan filed a motion in limine to exclude the allegations concerning J.P., D.M. and L.L. An administrative law judge (ALJ) ruled to allow only the allegations of E.S. and L.L. to proceed. On December 10, 2003, the Department filed a second amended complaint that additionally alleged that Morgan violated the confidentiality of E.S. and E.S.'s husband by discussing each spouse's individual sessions with the other.

An evidentiary hearing regarding Morgan's summary suspension commenced on December 4, 2003, before an ALJ and continued on December 5, 11, 12, and 15, 2003. Counsel for the Department and counsel for Morgan participated in the hearing and a member of the Board was present on December 4 only.

At the hearing, the Department first called E.S. to testify. E.S. stated that she and her husband were referred to Morgan for marriage counseling through her husband's insurance company. She had roughly five meetings with Morgan. E.S. described that her first meeting with Morgan was on July 16, 2003, at 10:30 p.m. She explained that she was scheduled to have an appointment on July 17, 2003, but that on the July 16, she had a fight with her husband and had him arrested. She then called Morgan, who suggested that she come for a session that evening.

E.S. described that her sessions were conducted in Morgan's home, in an office to the right of the front door. However, on August 4, 2003, her fourth or fifth session, E.S. went to Morgan's residence at 12:30 p.m., and Morgan had her go to a second-floor room to listen to a relaxation tape. The room was to the left at the top of the stairs, there was a recliner and a "desk chair" in the room, and the room was "very dark." E.S. stated that Morgan had her sit in the recliner and showed her that the chair had heating and vibrating mechanisms. Morgan reclined the chair for E.S. and turned on the heating and vibrating mechanisms. He then played the relaxation tape, which contained a woman's voice instructing the listener to close her eyes, to take deep breaths, and to sit in certain positions. E.S. stated that she initially felt relaxed and comfortable, that she "felt like I was being put into a trance," and that she could "go into a sleep, almost like a hypnotic state."

E.S. then described that Morgan placed his hand just above her right ankle and ran his hand up her shin, stopping at her knee. He then ran his hand all the way up her leg and she told him to "please stop it" and he said "okay." After a minute or two, Morgan rubbed her abdomen, lifted her shirt and ran his hand across her stomach on her bare skin and up her chest. She again told him to stop and he did. After another minute or two, Morgan left the room to answer a telephone call. When he returned, he put his hand on E.S.'s leg again, ran his hand up her leg, under her underwear, and put his finger in her vagina. E.S. said that she told him to stop, that he did stop, and that the telephone then rang again. After Morgan returned from the second phone call, E.S. stated that he put his hand on her stomach, lifted her shirt, pulled up her bra, and began sucking her right breast. E.S. said that she told Morgan to stop because she was "extremely uncomfortable."

E.S. described that at about this time, the relaxation tape finished and Morgan told her he had to go downstairs for a 2 p.m. appointment. He whispered something in her ear, but she did not understand what he said. Morgan then told E.S. that she could stay in the room to get herself together or listen to the tape again. E.S. stated that when Morgan left the room she jumped up, looked around the room, and then walked down the stairs. She described that she was upset but was trying to keep her composure. E.S. said that Morgan was already with his next client, a "blonde woman," and that she (E.S.) apologized for interrupting, got her things, and left the house.

E.S. testified that after leaving Morgan's residence she immediately called her friend, Donna Harrington, and told her that "something just happened." E.S. said that she did not want to talk about it over the telephone, so she drove around for a while and then went to Harrington's house. E.S. then told Harrington, who had been a police officer in Lithuania, what had happened.

E.S. stated that she then called a rape crisis hotline and was advised to go immediately to a hospital rather than to a police department. E.S. said that, at around 8 p.m., she went to Silver Cross Hospital, where emergency room doctors performed a "partial rape kit" examination. E.S. spoke with police officers at the hospital. She also met with Detective Richard Ackerson.

Finally, when asked why she did not get out of the chair when Morgan first touched her, E.S. stated:

"I ask myself that every day because this was — I was — I trusted this man and I was almost put into a hypnotic state in my opinion of the way the whole room was set up, the way the tape was played. I was scared. And I don't know why. I never — this has never happened to me and I don't know why I did not get up and run. I don't know."

The Department next called Investigator Disselhorst, who stated that his job with the Department was to conduct investigations of complaints against professionals. Disselhorst said that prior to working for the Department, he was a Chicago police officer for 32 years. Disselhorst described that in March of 2003, he interviewed Morgan at his home in relation to L.L.'s allegations. Disselhorst described that, in Morgan's home/residence, there was an office with glass doors to the right of the front door. He also reported that Morgan said that there was a "respite room" on the second floor. Morgan initially said that Disselhorst could not see the respite room because his wife was ill and was relaxing there, but when Disselhorst insisted, Morgan took him there. Disselhorst described that he observed the "respite room" for less than a minute or two, but said that it was at the top of the stairs and contained a recliner chair that was dark brown or, possibly, burgundy in color. Disselhorst said that Morgan's wife was in the chair so he was unable to further inspect it to see if it had heating or vibrating mechanisms. Disselhorst said that Morgan denied using the room for clients but then admitted that he had met with L.L. there when his wife was home during one session.

Disselhorst testified that he conducted a telephone interview with E.S. on November 3, 2003. He said that E.S. had difficulty discussing Morgan's treatment of her, that her voice was cracking as she spoke, and that she was emotional. Disselhorst said that E.S. told him that she was in the upstairs room at Morgan's residence on her last visit and that Morgan touched her legs, stomach, and vagina, and had placed his lips on her breast during the playing of the relaxation tape. Disselhorst stated that he believed what E.S. had told him because "she described the [respite room] in detail to the point where it fit the observations I had made when I was in the room."

Disselhorst stated that he spoke with E.S.'s friend, Harrington, on the telephone and referred to her as an "outcry witness," meaning the person to whom a victim first goes to for help or support....