Morr-Fitz, Inc. v. Blagojevich

• Decision Date: 19 March 2007
• Docket Number: No. 4-05-1050.,4-05-1050.
• Parties: MORR-FITZ, INC., an Illinois Corporation d/b/a Fitzgerald Pharmacy, Licensed and Practicing in the State of Illinois as a Pharmacy; L. Doyle, Inc., an Illinois Corporation d/b/a Eggelston Pharmacy, Licensed and Practicing in the State of Illinois as a Pharmacy; Kosirog Pharmacy, Inc., an Illinois Corporation d/b/a Kosirog Rexall Pharmacy, Licensed and Practicing in the State of Illinois as a Pharmacy; Luke Vander Bleek; and Glenn Kosirog, Plaintiffs-Appellants, v. Rod R. BLAGOJEVICH, Governor, State of Illinois; Fernando E. Grillo, Secretary, Illinois Department of Financial and Professional Regulations; Daniel E. Bluthardt, Acting Director, Division of Professional Regulations; and the Members of the State Board of Pharmacy, in their Official Capacities, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

867 N.E.2d 1164

371 Ill. App.3d 1175

MORR-FITZ, INC., an Illinois Corporation d/b/a Fitzgerald Pharmacy, Licensed and Practicing in the State of Illinois as a Pharmacy; L. Doyle, Inc., an Illinois Corporation d/b/a Eggelston Pharmacy, Licensed and Practicing in the State of Illinois as a Pharmacy; Kosirog Pharmacy, Inc., an Illinois Corporation d/b/a Kosirog Rexall Pharmacy, Licensed and Practicing in the State of Illinois as a Pharmacy; Luke Vander Bleek; and Glenn Kosirog, Plaintiffs-Appellants, v. Rod R. BLAGOJEVICH, Governor, State of Illinois; Fernando E. Grillo, Secretary, Illinois Department of Financial and Professional Regulations; Daniel E. Bluthardt, Acting Director, Division of Professional Regulations; and the Members of the State Board of Pharmacy, in their Official Capacities, Defendants-Appellees.

No. 4-05-1050.

Appellate Court of Illinois, Fourth District.

March 19, 2007.

Justice KNECHT delivered the opinion of the court:

In October 2005, plaintiffs, two individual pharmacists and three Illinois corporations that own and operate pharmacies in Illinois, filed their first amended complaint seeking injunctive and declaratory relief against defendants, Governor Rod Blagojevich, Secretary Fernando Grillo of the Illinois Department of Financial and Professional Regulations, Acting Director Daniel Bluthardt of the Division of Professional Regulations, and the State Board of Pharmacy. The suit alleged an administrative rule requiring pharmacies to dispense a certain contraceptive, levonorgestrol, also known as "Plan B" or the "morning after pill" (Rule) (68 Ill. Adm.Code § 1330.91(j), as amended by 29 Ill. Reg. 13639, 13663 (eff. August 25, 2005)), violates federal and state law by forcing plaintiffs to dispense the "morning after pill" even though this violates their religious beliefs and consciences. In November 2005, the trial court granted the State's motion to dismiss with prejudice on the grounds of lack of standing, ripeness, and failure to exhaust administrative remedies. Plaintiffs appeal, arguing the following: (1) they had standing; (2) they did not have to wait until a customer presented them with a prescription and then refuse to fill the prescription, thereby subjecting themselves to disciplinary proceedings, before they could challenge the Rule; and (3) they did not need to exhaust their administrative remedies before bringing this action in circuit court. We affirm.

I. BACKGROUND

Plaintiffs in this case allege having moral and religious objections to dispensing the "morning after pill." Based on the plaintiffs' beliefs, life begins at conception. As a result, according to plaintiffs' beliefs, the "morning after pill" has the effect of destroying human life because it can prevent an already fertilized egg from implanting in the uterus.

According to the Rule, plaintiffs have certain obligations regarding emergency contraception, such as the "morning after pill." The Rule states as follows:

"Duty of Division I Pharmacy to Dispense Contraceptives

1) Upon receipt of a valid, lawful prescription for a contraceptive, a pharmacy must dispense the contraceptive, or a suitable alternative permitted by the prescriber, to the patient or the patient's agent without delay, consistent with the normal timeframe for filling any other prescription. If the contraceptive, or a suitable alternative, is not in stock, the pharmacy must obtain the contraceptive under the pharmacy's standard procedures for ordering contraceptive drugs not in stock, including the procedures of any entity that is affiliated with, owns, or franchises the pharmacy. However, if the patient prefers, the prescription must be transferred to a local pharmacy of the patient's choice under the pharmacy's standard procedures for transferring prescriptions for contraceptive drugs, including the procedures of any entity that is affiliated with, owns, or franchises the pharmacy. Under any circumstances an unfilled prescription for contraceptive drugs must be returned to the patient if the patient so directs.

2) For the purposes of this subsection (j), the term `contraceptive' shall refer to all FDA-approved drugs or devices that prevent pregnancy." 68 Ill. Adm.Code § 1330.91(j), as amended by 29 Ill. Reg. 13639, 13663 (eff. August 25, 2005).

The "morning after pill" falls within the definition of a contraceptive. The State has made clear it intends to enforce the Rule. Under the Pharmacy Practice Act of 1987 (Pharmacy Act) (225 ILCS 85/1 through 40 (West 2004)), the Department of Financial and Professional Regulation may take disciplinary action against a licensee if the licensee violates the Pharmacy Act or any rules promulgated under the Pharmacy Act. 225 ILCS 85/30 (a)(2) (West 2004).

In October 2005, plaintiffs filed their first amended complaint for declaratory and injunctive relief challenging the Rule, claiming various state and federal causes of action. In their amended complaint, plaintiffs allege they have been presented with prescriptions for emergency contraception in the past. However, they failed to allege that they have been presented with a prescription for emergency contraception since the Rule went into effect. Plaintiffs also failed to allege they stock the "morning after pill," the Rule requires them to do so, or the Rule has required them to take any immediate action to comply with the Rule. That same month, the State filed a motion to dismiss plaintiffs' claim based on their lack of standing. The trial court dismissed plaintiffs' claim with prejudice based on plaintiffs' lack of standing, lack of ripeness of the claim, and plaintiffs' failure to exhaust their administrative remedies.

This appeal followed. In August 2006, the Food and Drug Administration (FDA) approved "Plan B" for over-the-counter, nonprescription sales to women age 18 and older.

II. ANALYSIS

A. Standard of Review

We review de novo a trial court's decision to grant a motion to dismiss. Midland Hotel Corp. v. Director of Employment Security, 282 Ill.App.3d 312, 315, 217 Ill.Dec. 897, 668 N.E.2d 82, 85 (1996).

B. Standing in Declaratory-Judgment Actions

According to our supreme court, a preliminary question in any declaratory-judgment action is whether the plaintiff has standing. Messenger v. Edgar, 157 Ill.2d 162, 170, 191 Ill.Dec. 65, 623 N.E.2d 310, 313 (1993). According to our supreme court, "standing only requires some injury in fact to a legally cognizable interest."

"There are two components to the standing requirement in the context of declaratory[-] judgment actions. There must be [(1)] an `actual controversy' between adverse parties, and [(2)] the party seeking the declaratory judgment must be `interested' in the controversy." Flynn v. Ryan, 199 Ill.2d 430, 436, 264 Ill.Dec. 710, 771 N.E.2d 414, 418 (2002).

In Underground Contractors Ass'n v. City of Chicago, 66 Ill.2d 371, 5 Ill.Dec. 827, 362 N.E.2d 298 (1977), the supreme court explained both of these components. As for the second component that a party must be "interested" in the controversy, the court has stated:

"The word[ ] `interested' does not mean merely having a curiosity about or a concern for the outcome of the controversy. Rather, the party seeking relief must possess a personal claim, status, or right which is capable of being affected. [Citations.] The dispute must, therefore, touch the legal relations of parties who stand in a position adverse to one another." Underground Contractors Ass'n, 66 Ill.2d at 376, 5 Ill.Dec. 827, 362 N.E.2d at 301.

As for the "actual controversy" component, the court has stated:

"`Actual' in this context does not mean that a wrong must have been committed and injury inflicted. Rather, it requires a showing that the underlying facts and issues of the case are not moot or premature, so as to require the court to pass judgment on mere abstract propositions of law, render an advisory opinion, or give legal advice as to future events. [Citations.] The case must therefore, present a concrete dispute admitting of an immediate and definitive determination of the parties' rights, the resolution of which will aid in the termination of the controversy or some part thereof." Underground Contractors Ass'n, 66 Ill.2d at 375, 5 Ill.Dec. 827, 362 N.E.2d at 300.

Most of the arguments of both plaintiffs and defendants center on these two components. Both plaintiffs and defendants ignore the fact that this is not the only consideration courts take into account in determining whether they will hear a declaratory judgment action concerning the validity of an administrative action.

In Abbott Laboratories v. Gardner, 387 U.S. 136, 138-39, 87 S.Ct. 1507, 1510, 18 L.Ed.2d 681, 686 (1967) (Abbott Labs), the petitioners challenged an administrative regulation, arguing the Commissioner of Food and Drugs exceeded the authority Congress granted in an amendment to the Federal Food, Drug, and Cosmetic Act. The Supreme Court found the plaintiffs' claim was "ripe." According to the Supreme Court:

"The injunctive and declaratory judgment remedies are discretionary, and courts traditionally have been reluctant to apply them to administrative determinations unless these arise in the context of a controversy `ripe' for judicial resolution. Without undertaking to survey the intricacies of the ripeness doctrine it is fair to say that its basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also * * * protect[s] the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." (Emphasis added.) Abbott Labs., 387 U.S. at 148-49, 87 S.Ct. at 1515, 18 L.Ed.2d at 691.

The Court stated "[t]he problem [of determining whether a controversy is `ripe'] is best seen in a twofold aspect, requiring [the court] to evaluate both the fitness of the issues for...