Valdez v. Zollar

• Decision Date: 10 May 1996
• Docket Number: 1-94-2626,Nos. 1-94-2461,s. 1-94-2461
• Citation: 281 Ill.App.3d 329,665 N.E.2d 560
• Parties: , 216 Ill.Dec. 500 Maryann T. VALDEZ, Plaintiff-Appellee, v. Nikki M. ZOLLAR, Director of Professional Regulation, and The Department of Professional Regulation, Defendants-Appellants. Nida GAFFUD, Plaintiff-Appellee, v. Nikki M. ZOLLAR, Director of Professional Regulation, and The Department of Professional Regulation, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 560

665 N.E.2d 560

281 Ill.App.3d 329, 216 Ill.Dec. 500

Maryann T. VALDEZ, Plaintiff-Appellee, v. Nikki M. ZOLLAR, Director of Professional Regulation, and The Department of Professional Regulation,

Defendants-Appellants.

Nida GAFFUD, Plaintiff-Appellee, v. Nikki M. ZOLLAR, Director of Professional Regulation, and The Department of Professional Regulation,

Defendants-Appellants.

Nos. 1-94-2461, 1-94-2626.

Appellate Court of Illinois First District, Fifth Division.

May 10, 1996.

James E. Ryan, Attorney General, Barbara A. Preiner, Solicitor General, William K. Blanchard, Assistant Attorney General, for Appellants.

William J. Larned and James F. Carlson, Wilmette, for Appellees.

Justice COUSINS delivered the opinion of the court:

The plaintiffs in these consolidated appeals, Maryann Valdez and Nida Gaffud, both filed complaints against the defendants, Nikki Zollar and the Department of Professional Regulation, seeking administrative review of the defendants' denial of the plaintiffs' licensure to practice nursing. Both plaintiffs had gained licensure in other states by passing the National Counsel Licensure Examination (NCLEX) in 1993 after failing earlier attempts in the 1980s. When plaintiffs sought Illinois licensure by endorsement, defendants denied licensure based on a January 1, 1990, amendment to the Illinois Nursing Act of 1987 (the Nursing Act) (see 225 ILCS 65/15 (West 1992)), which provided that candidates must pass NCLEX within three years of the first NCLEX exam they attempted. In the trial courts, both plaintiffs were successful and granted licensure because both courts held that the 1990 amendment should apply only prospectively. Defendants have appealed both decisions, and we have consolidated the two appeals.

We affirm.

BACKGROUND

The NCLEX is a nationwide exam given twice yearly in February and July. Gaffud initially attempted to pass the NCLEX in July of 1983, and Valdez initially tried in July 1987. At the time of both exams, the following statute was in force:

"Any person in this State or in any other State or territory of the United States who shall fail any examination a total of 6 times to determine the fitness of such person to receive a license as a registered professional nurse, shall thereafter be ineligible to take any further examination or examinations until such time * * * of the recompletion of the entire course of study * * *." (Emphasis added.) Ill.Rev.Stat.1983, ch. 111, par. 3428.2.

Both plaintiffs failed their initial examination attempts. Gaffud also failed the NCLEX exam in February 1984, July 1984, and July 1985. Gaffud then postponed any additional In 1987, the Nursing Act was amended as follows:

[216 Ill.Dec. 502] attempts for six years as she suffered five miscarriages from six pregnancies.

"[A]ny person in this State or in any other jurisdiction of the United States who fails any examination a total of 6 times within 3 years to determine the fitness of such person to receive a license as a registered professional nurse * * * shall thereafter be ineligible to take any further examination or examinations, or be issued a license, until such time * * * of the recompletion of the entire course of study * * *." (Emphasis added.) Ill.Rev.Stat.1987, ch. 111, par. 3515 (effective January 1, 1988).

Valdez made another attempt to pass NCLEX in February 1988, but she failed again.

In 1989, the Nursing Act was again amended:

"[A]ny person in this State or in any other jurisdiction of the United States who fails to pass an examination within 3 years to determine the fitness of such person to receive a license as a registered professional nurse * * * shall thereafter be ineligible to take any further examination or examinations, or be issued a license, until such time * * * of the recompletion of the entire course of study * * *." (Emphasis in original.) Ill.Rev.Stat.1989, ch. 111, par. 3515 (effective January 1, 1990).

Valdez failed additional NCLEX attempts in February 1990, July 1990, February 1991, February 1992, and July 1992; Gaffud failed another attempt in July 1991. However, in February 1993, both Gaffud and Valdez passed the NCLEX on their sixth and eighth attempts, respectively. Valdez obtained nursing licensure in Minnesota, and Gaffud obtained licensure in Wisconsin. Both states have admission rules identical to the Illinois Nursing Act but for the three-year time limitation imposed by the 1990 amendment.

After obtaining their licensure in other states, both plaintiffs applied in 1993 for Illinois licensure by endorsement pursuant to section 19 of the Nursing Act. 225 ILCS 65/19 (West 1992). Section 19(a)(1) allows endorsement "whenever the requirements of such state, or territory of the United States were at the date of license substantially equal to the requirements then in force in this State." 225 ILCS 65/19(a)(1) (West 1992). In November 1993, defendants denied licensure to both plaintiffs by citing Illinois' three-year limit on passing the NCLEX, concluding that Minnesota's and Wisconsin's requirements had not been substantially equal to those of Illinois.

In December 1993, both plaintiffs filed their complaints for administrative review of the defendants' decision, arguing that retroactive enforcement of the 1990 amendment was prohibited. In July 1994, both trial courts reversed the defendants' decision and ordered the defendants to grant licensure, holding that the defendants had improperly applied the 1990 amendment retroactively. In July 1994, defendants appealed both orders, and this court has consolidated the appeals. The defendants make three arguments: (1) they did not retroactively apply the 1990 amendment because the plaintiffs had no vested rights in their lost exam attempts or had insufficient rights to overcome the State's vital interests; (2) they did not apply the 1990 amendment retroactively because the amendment merely clarified the law and was not a substantive change; and (3) plaintiff Valdez should not have been licensed even under the pre-1988 statute because of her seven failures before passing.

OPINION

I

In determining whether a statute has been applied retroactively, it is well settled that a statute is not retroactive just because it relates to antecedent events, or because it draws upon antecedent facts for its operation. First of America Trust Co. v. Armstead, 171 Ill.2d 282, 289-90, 215 Ill.Dec. 639, 664 N.E.2d 36 (1996). Instead, a retroactive change in the law is one that takes away or impairs vested rights under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability in respect of transactions or considerations already past. Armstead, 171 Ill.2d at 290, 215 Ill.Dec. 639, 664 N.E.2d 36. Such a retroactive change is prohibited as a violation of the due process clause of the Illinois Constitution, and the legislature is without authority to enact such a law even if that is its express intention. Armstead, at 290, 215 Ill.Dec. 282, 664 N.E.2d 36.

We hold that the 1990 amendment could not preclude additional NCLEX attempts under its three-year time limit before March 1993 because such a change would have created a new obligation and imposed a new duty with respect to the past consideration of previous exams. Whether a particular expectation rises to the level of a vested right is not capable of precise definition, but it should be a complete and unconditional demand or exemption that may be equated with a property interest. Armstead, at 290-91, 215 Ill.Dec. 282, 664 N.E.2d 36. For a particular expectation to be strong enough to render it complete and unconditional, we believe that a major factor must be the reasonable reliance that the expectation induces. See Gonzales-Blanco v. Clayton, 110 Ill.App.3d 197, 204, 65 Ill.Dec. 794, 441 N.E.2d 1308 (1982); Burke v. Department of Registration & Education, 83 Ill.App.3d 647, 650, 39 Ill.Dec. 370, 404 N.E.2d 961 (1980). In this matter, the plaintiffs detrimentally relied on the statute as it existed before 1990. They lost the opportunity to attempt additional exams before their three-year time limit expired. We find that the lack of any time restrictions for passing the NCLEX before 1990 was an unconditional exemption that rose to the level of a vested right.

Our conclusion is supported by other cases that have examined amendments to the licensing requirements of medical providers, as these cases have also focussed on whether their amendments violated reasonable preexisting expectations that individuals had relied upon. In both Gonzales-Blanco and Burke, we reversed an agency's retroactive application of new rules when they surprised and prejudiced those seeking licenses as medical providers. The Gonzales-Blanco court stated:

"In determining whether an administrative agency may apply its newly adopted regulations retroactively, this court has outlined several considerations: * * * whether the agency action results in injury or substantial prejudice, whether the regulation represents an abrupt departure from well-established practice, the extent to which the party * * * relied on the former regulation and, the degree of the burden imposed upon that party." Gonzales-Blanco, 110 Ill.App.3d at 204, 65 Ill.Dec. 794, 441 N.E.2d 1308.

In Gonzales-Blanco, we allowed plaintiffs the certificates needed for hospital residency programs because the agency's abrupt departure from its former certificate requirements had substantially prejudiced the plaintiffs. Gonzales-Blanco, 110 Ill.App.3d at 205, 65 Ill.Dec. 794, 441 N.E.2d 1308. We reached a similar conclusion in Burke, stating, "We conclude the plaintiffs' constitutionally protected interest in pursuing their chosen profession of nursing demands that * * * notice be given of a change in an interpretation of a rule which will substantially affect applicants for licensure before that new interpretation is binding." Burke, 83 Ill.App.3d at 650, 39 Ill.Dec. 370, 404 N.E.2d 961.

In...