Peckmann v. Thompson, s. 90-3334

• Decision Date: 02 July 1992
• Docket Number: Nos. 90-3334,90-3445,s. 90-3334
• Citation: 966 F.2d 295
• Parties: Betty PECKMANN, Kim Perry, William Dick, and Kimberly Dick, all on their own behalf and on behalf of separate Plaintiff classes, Plaintiffs-Appellees, Cross-Appellants, v. Robert THOMPSON, in his official capacity as Director of the Illinois Department of Professional Regulation, Bernard Turnock, in his official capacity as Director of the Illinois Department of Public Health, Neil Hartigan, in his official capacity as Attorney General of the State of Illinois, and Thomas Difanis, Gregory Grigsby, Nancy Owen, Richard Goff, Richard Broch, Tony Lee, John Turner, Lawrence Fichter, Charles Reynard, John Robinson, Kevin Lyons, Roger Simpson, Eric Blanc, and John Huschen, all in their official capacity as State's Attorneys and on their own behalf and on behalf of all Defendant class State's Attorneys in Illinois, Defendants-Appellants, Cross-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 295

966 F.2d 295

22 Fed.R.Serv.3d 1335

Betty PECKMANN, Kim Perry, William Dick, and Kimberly Dick all on their own behalf and on behalf of separate Plaintiff classes, Plaintiffs-Appellees Cross-Appellants, v. Robert THOMPSON, in his official capacity as Director of the Illinois Department of Professional Regulation, Bernard Turnock, in his official capacity as Director of the Illinois Department of Public Health, Neil Hartigan, in his official capacity as Attorney General of the State of Illinois, and Thomas Difanis, Gregory Grigsby, Nancy Owen Richard Goff, Richard Broch, Tony Lee, John Turner, Lawrence Fichter, Charles Reynard, John Robinson, Kevin Lyons, Roger Simpson, Eric Blanc, and John Huschen, all in their official capacity as State's Attorneys and on their own behalf and on behalf of all Defendant class State's Attorneys in Illinois Defendants-Appellants, Cross-Appellees.

Nos. 90-3334, 90-3445.

United States Court of Appeals, Seventh Circuit.

Argued May 26, 1992.

Decided July 2, 1992.

Edward Zukosky, argued, Wenona, Ill., William C. Zukosky, Urbana, Ill., George F. Taseff, argued, Jennings, Novick, Taseff, Smalley & Davis, Bloomington, Ill., for plaintiffs-appellees, cross-appellants and amicus curiae Marsden Wagner, International Ass'n of Parents and Professionals for Safe Alternatives in Childbirth.

Neil F. Hartigan, Atty. Gen., Chicago, Ill., Randy E. Blue, Asst. Atty. Gen., Criminal Appeals Div., Springfield, Ill., Jennifer A. Keller, Asst. Atty. Gen., argued, Civil Appeals Div., Chicago, Ill., Kenneth R. Boyle, Patrick Delfino, State's Atty. Appellate Prosecutor, Springfield, Ill., for defendants-appellants, cross-appellees.

David M. Smolin, Samford University, Cumberland Law School, Birmingham, Ala., Douglas H. Scofield, Birmingham, Ala., for amicus curiae Southern Center for Law and Ethics.

Before BAUER, Chief Judge, COFFEY, Circuit Judge, and WOOD, Jr., Senior Judge.

BAUER, Chief Judge.

On November 16, 1989, plaintiffs, a traditional midwife, an apprentice midwife, and a couple who seek to use the services of a midwife, brought suit individually and on behalf of the classes of persons similarly situated, against the Director of the Illinois Department of Professional Regulation, the Director of the Illinois Department of Public Health, the Attorney General of the State of Illinois (all in their official capacities, hereinafter "the state defendants"), and the State's Attorneys of fourteen Illinois counties (in their official capacities and on their own behalf and on behalf of the class of all State's Attorneys in Illinois, hereinafter "the county defendants"). The complaint alleges that the State's failure to license traditional midwives and its construction of the Illinois Medical Practice Act of 1987, ILL.REV.STAT. ch. 111, paras. 4400-1 thru 4400-63, violate rights guaranteed under the First, Ninth, and Fourteenth Amendments.

As their initial pleading, the state and county defendants filed separate motions under Federal Rule of Civil Procedure 12(b)(1) to dismiss for want of a substantial federal question. Memoranda of law accompanied both motions, but neither included affidavits or other evidentiary materials. Plaintiffs responded to both motions with their own memorandum of law, and attached thereto uncertified copies of indictments against Peckmann and Perry for practicing medicine without a license, and a copy of a nolle prosequi motion withdrawing those charges. Plaintiffs submitted these latter documents in support of allegations in the complaint that (1) Peckmann and Perry were indicted for practicing medicine without licenses, and (2) the charges were dismissed on the condition that plaintiffs would file an action in federal court to litigate their constitutional claims. Additionally, plaintiffs attached to their memorandum copies of opinions and orders issued by courts of other jurisdictions.

These were all the documents before the district court when it heard oral argument on defendants' motions on May 2, 1990. At the hearing's conclusion, the district court took the matter under advisement. Four months later, on September 19, 1990, 745 F.Supp. 1388, the district court issued its order denying defendants' motions to dismiss and entering summary judgment in favor of plaintiffs. It concluded that, although the state, within its police power, may prohibit the practice of midwifery, sections 4400-49 and 4400-50 of the Illinois Medical Practice Act of 1987 are unconstitutionally vague.

Defendants filed a timely joint notice of appeal. Plaintiffs cross-appealed. Because of our resolution of the first argument defendants raise, we need not address their remaining arguments, nor those plaintiffs raise. Defendants claim that the district court erred when it sua sponte entered summary judgment against them. We agree.

If a defendant's Rule 12(b)(1) motion is an indirect attack on the merits of the plaintiff's claim, the court may treat the motion as if it were a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. Malak v. Associated Physicians, Inc., 784 F.2d 277, 280 (7th Cir.1986). The rule further provides that if, on a 12(b)(6) motion,

matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

FED.R.CIV.P. 12(b).

This presupposes, of course, that a defense motion under Rule 12(b)(6) is converted into a defense motion under Rule 56. To enter judgment against a defendant sua sponte, however, is to turn the rule around and convert a defense Rule 12(b)(6) motion into a plaintiff's Rule 56 motion. Although a permissible procedure, it is a hazardous one that warrants special caution. Horn v. City of Chicago, 860 F.2d 700, 703 n. 6 (7th Cir.1988); Sawyer v. United States, 831 F.2d 755, 759 (7th Cir.1987)....