Consiglio v. Department of Financial & Professional Regulation

ILLINOIS OFFICIAL REPORTS

Appellate Court

Consiglio v. Department of Financial & Professional Regulation, 2013 IL App (1st) 121142

Appellate Court ANGELO CONSIGLIO, M.D., Plaintiff-Appellant, v. THE

Caption DEPARTMENT OF FINANCIAL AND PROFESSIONAL

REGULATION; BRENT E. ADAMS, Secretary of the Department of

Financial and Professional Regulation; and JAY STEWART, Director of

the Division of Professional Regulation of the Department of Financial

and Professional Regulation, Defendants-Appellees.–BRADLEY

HIROSHI HAYASHI, D.C., Plaintiff-Appellant, v. THE DEPARTMENT

OF FINANCIAL AND PROFESSIONAL REGULATION; BRENT E.

ADAMS, Secretary of the Department of Financial and Professional

Regulation; and JAY STEWART, Director of the Division of

Professional Regulation of the Department of Financial and Professional

Regulation, Defendants-Appellees.–MOHAMMED KALLEELUDDIN,

M.D., Plaintiff-Appellant, v. THE DEPARTMENT OF FINANCIAL

AND PROFESSIONAL REGULATION; and JAY STEWART, Director

of the Division of Professional Regulation of the Department of Financial

and Professional Regulation, Defendants-Appellees.–NERCY JAFARI,

M.D., Plaintiff-Appellant, v. ILLINOIS DEPARTMENT OF

FINANCIAL AND PROFESSIONAL REGULATION; and JAY

STEWART, Director of the Division of the Professional Regulation of

the Department of Financial and Professional Regulation, Defendants-

Appellees.

District & No. First District, First Division

Docket Nos. 1-12-1142, 1-12-1143, 1-12-1197, 1-12-1242 cons.

Filed April 8, 2013

Rehearing denied May 2, 2013

Rehearing denied May 3, 2013

Held In a consolidated appeal by health care workers whose licenses were

(Note: This syllabus permanently revoked without a hearing pursuant to the Health Care

constitutes no part of Worker Self-Referral Act, based on conduct including convictions or

the opinion of the court sentences requiring registration as sex offenders, the appellate court

but has been prepared affirmed the dismissal of plaintiffs’ complaints and rejected their

by the Reporter of contentions that the Act, inter alia, was retroactive and infringed on their

Decisions for the right to substantive due process, violated the protection against double

convenience of the jeopardy and ex post facto laws, and offended separation of powers

reader.)

principles, and that prior disciplinary decisions against plaintiffs

constituted a res judicata bar to the revocations.

Decision Under Appeal from the Circuit Court of Cook County, Nos. 11-CH-28998, 11-

Review CH-29295, 11-CH-29367, 11-CH-41721; the Hon. Franklin Valderrama,

Judge, presiding.

Judgment Affirmed.

Counsel on Bruno & Weiner, of Chicago (Edward F. Bruno and Joseph E. Bruno, of

Appeal counsel), for appellants.

Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,

Solicitor General, and Nadine J. Wichern, Assistant Attorney General, of

counsel), for appellees.

Panel PRESIDING JUSTICE HOFFMAN delivered the judgment of the court,

with opinion.

Justices Rochford and Delort concurred in the judgment and opinion.

OPINION

¶1 At issue in these consolidated appeals is the constitutionality of section 2105-165 of the

Illinois Department of Professional Regulation Law (20 ILCS 2105/2105-165 (West Supp.

2011)) (hereinafter referred to as the Act) as applied to the health-care-worker plaintiffs.

Subsection (a) of the Act provides that the license of a health care worker as defined in the

Health Care Worker Self-Referral Act (225 ILCS 47/1 et seq. (West 2010)) who: “(1) has

been convicted of a criminal act that requires registration under the Sex Offender

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Registration Act; (2) has been convicted of a criminal battery against any patient in the

course of patient care or treatment, including any offense based on sexual conduct or sexual

penetration; (3) has been convicted of a forcible felony; or (4) who is required as part of a

criminal sentence to register under the Sex Offender Registration Act *** shall by operation

of law be permanently revoked without hearing.” 20 ILCS 2105/2105-165(a) (West Supp.

2011). The Act became effective on August 20, 2011. Thereafter, and pursuant to the Act,

the licenses issued to the plaintiffs to provide health services in Illinois were permanently

revoked by the Department of Financial and Professional Regulation (Department) by reason

of their having been previously convicted of batteries against patients.

¶2 The facts giving rise to these consolidated appeals are relatively uncomplicated. Each of

the plaintiffs was licensed by the Department as a health care worker. Specifically, Angelo

Consiglio, M.D., Nercy Jafari, M.D., and Mohammed Kalleeluddin, M.D., were licensed

under the Medical Practice Act of 1987 (Medical Practice Act) (225 ILCS 60/1 et seq. (West

2010)) as physicians licensed to practice medicine in all of its branches. Bradley Hiroshi

Hayashi, D.C., was licensed under the Medical Practice Act as a chiropractic physician,

licensed to treat human ailments without the use of drugs and without operative surgery.

Subsequent to being licensed, each of the plaintiffs was convicted of battery or abuse against

a patient in the course of care or treatment.

¶3 In 2000, Kalleeluddin was convicted of four counts of misdemeanor battery upon female

patients. As a consequence of the allegations of misconduct that led to his convictions, the

Department suspended Kalleeluddin’s license to practice medicine on February 19, 1998.

Kalleeluddin’s medical license remained suspended until December 18, 2000, when the

Department issued an order restoring it subject to a term of indefinite probation. On

November 9, 2007, following an administrative hearing, the Department entered an order

terminating Kalleeluddin’s probation and restoring his medical license, unencumbered.

¶4 In August 2001, Jafari was convicted of misdemeanor criminal sexual abuse for

misconduct involving a female patient. He was sentenced to 24 months’ probation and was

required to register as a sex offender for 10 years after the date of his conviction. In 2003,

the Department determined that Jafari’s medical license did not need to be suspended,

revoked, or otherwise limited. In 2010, the Department revisited Jafari’s fitness in connection

with the operation of his surgical center, and it determined that no action was required.

Jafari’s duty to register as a sex offender expired four days after the Act took effect.

¶5 On January 26, 2005, Consiglio pled guilty to misdemeanor battery upon a female patient

in his medical office on January 5, 2004. As a result of his conviction, the Department

summarily suspended Consiglio’s medical license on February 5, 2005. On May 24, 2005,

the Department entered a consent order, under which Consiglio and the Department agreed

that his medical license would remain suspended until May 31, 2005, and that thereafter, and

until further order, his license would be on an indefinite probation status, subject to certain

conditions set forth in the consent order. On August 10, 2006, the Department entered

another consent order, finding that Consiglio had fully complied with the terms and

conditions of his probation, and restoring his license to practice medicine, unencumbered.

¶6 On May 21, 2007, Hayashi was convicted of misdemeanor battery based upon the

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testimony of a patient that he had touched her inappropriately during the course of treatment.

On November 24, 2008, the Department entered a consent order, under which Hayashi and

the Department agreed that his license to practice as a chiropractic physician would be

suspended for a period of 30 days and thereafter reinstated on a probationary basis for a

minimum of 3 years, subject to the terms and conditions set forth in the order.

¶7 Following the revocation of their licenses, the plaintiffs filed separate actions in the

circuit court of Cook County, seeking, inter alia, (1) a judicial declaration that the Act can

be applied only prospectively as the result of convictions that occur after its effective date;

and (2) injunctive relief enjoining the Department from revoking their licenses to provide

health services as a consequence of any conviction occurring prior to August 20, 2011, the

Act’s effective date. The Department and Jay Stewart, the Director of its Division of

Professional Regulation, filed motions to dismiss the plaintiffs’ actions pursuant to section

2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2010)), which the

circuit court granted. Thereafter, the plaintiffs each filed timely notices of appeal, and their

appeals have been consolidated for purposes of judicial economy.

¶8 As the plaintiffs’ complaints in these consolidated appeals were dismissed in response

to the defendants’ motions brought pursuant to section 2-615 of the Code, the only question

before this court is whether the dismissed counts state causes of action upon which relief can

be granted. Oliveira v. Amoco Oil Co., 201 Ill. 2d 134, 147 (2002). “The legal sufficiency

of a complaint alleging that a statute or ordinance is unconstitutional may be raised by way

of a section 2-615 motion.” DeWoskin v. Loew’s Chicago Cinema, Inc., 306 Ill. App. 3d 504,

513 (1999). The issues presented are of law; consequently, our review is de novo,

independent of the reasoning of the trial court. T&S Signs, Inc. v. Village of Wadsworth, 261

Ill. App. 3d 1080, 1084 (1994).

¶9 In ruling on these appeals, we have taken as true all well-pleaded facts in the complaints

as well as all reasonable inferences that may be drawn from those facts, and we have

construed all the allegations in the light most favorable to the plaintiffs. Marshall v. Burger

King Corp., 222 Ill. 2d 422, 429 (2006). However, conclusions of law or fact contained

within the challenged complaints, unsupported by specific factual allegations, were not taken

as true. Ziemba v. Mierzwa, 142 Ill. 2d 42, 47 (1991).

¶ 10 The plaintiffs have raised a number of arguments in support of their respective appeals.

Some of the arguments are common to all of their briefs, whereas some are advanced by

fewer than all of the plaintiffs. We will discuss all of the arguments raised without specifying

which plaintiff or plaintiffs raised them. The plaintiffs argue that, as applied to them, the Act

(1) is retroactive in a manner that offends the constitutional guarantee of substantive due

process; (2) infringes on their constitutional rights to procedural due process; (3) violates

their constitutional protection against double jeopardy; (4) violates the constitutional

prohibition against ex post facto laws; (5) offends separation of powers principles by

abridging the Department’s discretionary authority and the judiciary’s power of review; (6)

impairs the obligations of contracts between the Department and the plaintiffs, in violation

of the contracts clause of the Illinois Constitution; (7) imposes an excessive penalty in

violation of the proportionate penalties clause of the Illinois Constitution; (8) cannot be

enforced, because the Department’s prior disciplinary decisions create a res judicata bar to

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new discipline; and (9) unfairly deprives them of vested limitations and repose defenses. For

the reasons that follow, we reject all of these arguments.

¶ 11 The plaintiffs first argue that the plain language of the Act does not reflect an intent that

it apply to health care workers convicted of a triggering event prior to its enactment. Further,

even if the legislature so intended, the plaintiffs argue that the due process clauses of the

federal and state constitutions bar such retroactive changes in the law. U.S. Const., amend.

XIV; Ill. Const. 1970, art. I, § 2; Lazenby v. Mark’s Construction, Inc., 236 Ill. 2d 83, 98

(2010). We disagree on both points.

¶ 12 Our first task is to determine whether the legislature intended that the Act apply to

triggering events occurring before its effective date. In construing a statute, our goal is to

ascertain and give effect to the legislature’s intent. Chicago Teachers Union, Local No. 1 v.

Board of Education of the City of Chicago, 2012 IL 112566, ¶ 15. The most reliable way to

ascertain the legislative intent is to examine the language of the statute, giving its words their

plain and ordinary meaning. Id.

¶ 13 The Act provides that, when a licensed health care worker “has been convicted” of one

triggering offense, his or her license “shall by operation of law be permanently revoked

without a hearing.” Although the plaintiffs argue that the Act contains no express statement

that it applies to individuals who have been convicted of a triggering event prior to its

enactment, their argument is belied by the clear and unambiguous language of the Act. The

phrase “has been” is in the present perfect tense, which is used to refer to a past event that

has present consequences. See In re Gwynne P., 215 Ill. 2d 340, 357-58 (2005) (the language

“ ‘[h]as prevented’ is in the present perfect tense, a verb form used to denote action

beginning in the past and continuing to the present”). Thus, the Act clearly applies to the

plaintiffs’ convictions, even though those convictions predate the Act.

¶ 14 The next question to be resolved is whether the Act operates retroactively in a way that

violates their rights to substantive due process. To determine whether a statute operates

retroactively for purposes of substantive due process, our supreme court has adopted the

analysis set forth in Landgraf v. USI Film Products, 511 U.S. 244 (1994). Commonwealth

Edison Co. v. Will County Collector, 196 Ill. 2d 27, 39 (2001). Under Landgraf, if the

legislature has clearly indicated the temporal reach of a statute, then, absent a constitutional

prohibition, that expression of legislative intent must be given effect. Id. at 38. When the

legislature has not indicated the temporal reach, then the court must determine whether

applying the statute would have a retroactive impact; meaning, “ ‘whether it would impair

rights a party possessed when he acted, increase a party’s liability for past conduct, or impose

new duties with respect to transactions already completed.’ ” Id. (quoting Landgraf, 511 U.S.

at 280). “If there would be no retroactive impact, as that term is defined by the court, then

the amended law may be applied.” Id. If the amendment has a retroactive impact, then the

court must presume that the legislature did not intend that it be so applied. Id.

¶ 15 In their arguments, the plaintiffs somewhat conflate the issues of whether the Act applies

to convictions that predate its enactment and whether the Act operates retroactively. The fact

that application of the Act’s mandatory revocation provisions may depend upon criminal acts

which predate its effective date does not necessarily render it retroactive in nature. Landgraf,

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511 U.S. at 269-70; Cox v. Hart, 260 U.S. 427, 435 (1922).

¶ 16 Indeed, although the Act may draw upon antecedent convictions for its operation, it does

not impose new legal consequences to the plaintiffs’ convictions or their right to practice

medicine in the years after their convictions and prior to its effective date. “Rather, the

statute looks prospectively at [their] right to continue practicing medicine in the future.”

Bhalerao v. Illinois Department of Financial & Professional Regulations, 834 F. Supp. 2d

775, 783 (N.D. Ill. 2011). As the court held in Bhalerao, the Act creates a present and future

effect on present and future conduct, and has no effect on the plaintiffs’ rights to practice

medicine in the past. Id. at 783-84; see also Wineblad v. Department of Registration &

Education, 161 Ill. App. 3d 827, 830 (1987) (finding the State may change the requirements

for the issuance or retention of a professional license so long as the requirement bears some

reasonable relationship to the legitimate interest of public health and safety); United States

v. Leach, 639 F.3d 769, 773 (7th Cir. 2011) (finding new Sex Offender Registration and

Notification Act (18 U.S.C. § 2250(a) (2006)) was not retroactive merely because it applied

to convictions that predated its enactment; rather, the law created “new, prospective legal

obligations based on the person’s prior history”). In sum, the Act affects only the plaintiffs’

rights to practice as health care workers subsequent to its enactment, and it is not retroactive

in a manner that triggers the substantive due process protections described in Landgraf.1

¶ 17 Next, the plaintiffs argue that the Act may not be given effect where doing so violates

their procedural due process rights. Procedural due process delineates the procedures that

must be followed before depriving a person of life, liberty, or property. Fischetti v. Village

of Schaumburg, 2012 IL App (1st) 111008, ¶ 15. The plaintiffs argue that, because the Act

requires revocation of their licenses without a hearing, it denies them their rights to

procedural due process. Again, we disagree.

¶ 18 Due process is a flexible concept, and the procedural safeguards it requires may not be

the same in all situations. People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 201 (2009).

Procedural due process does not necessarily require a proceeding that is akin to a judicial

proceeding; nor does it require a hearing in every instance a government action impairs a

private interest. Callahan v. Sledge, 2012 IL App (4th) 110819, ¶ 27. Courts should consider

the following factors in evaluating procedural due process challenges: (1) the private interest

that will be affected by the official action; (2) the risk of an erroneous deprivation of such

interest through the procedures used, and the value, if any, of any additional or substitute

procedural safeguards; and (3) the government’s interest, including the fiscal and

administrative burdens that the additional or substitute procedural safeguards would entail.

Konetski, 233 Ill. 2d at 201.

¶ 19 Under the first factor, a professional license constitutes a property interest. See Smith v.

Department of Registration & Education, 412 Ill. 332, 340-41 (1952) (“It has been

universally held that a license to practice medicine is a ‘property right,’ within the meaning

1

Because we find that the Act is not retroactive in nature, we reject the plaintiffs’ arguments

that the savings clauses of the Statute on Statutes (5 ILCS 70/4 (West 2010)) and the Civil

Administrative Code of Illinois (20 ILCS 5/5-95 (West 2010)) bar the Act’s application to them.

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of the constitutional guarantees of due process of law.”). Under the second factor, the risk

that a license may be erroneously revoked under the Act is low, because the Act operates

only upon a conviction, the existence of which is a matter of public record which can be

established without a fact-finding hearing. As for the third factor, there is a strong

government interest in protecting the public from health care workers with past criminal

convictions. Carter-Shields v. Alton Health Institute, 201 Ill. 2d 441, 463 (2002); see People

ex rel. Eppinga v. Edgar, 112 Ill. 2d 101, 108-10 (1986) (finding a hearing not required in

license revocation of driver charged with drunk driving where the risk of erroneous

revocation was low and the government interest in highway safety was high). Further, a

hearing requirement would impose additional burdens without any corresponding benefit.

Therefore, as in Eppinga, due process does not mandate a hearing under the circumstances

present in the instant cases.

¶ 20 Furthermore, the plaintiffs acknowledge that they were provided notice that their licenses

were being revoked in accordance with the Act, and that they could challenge the revocation

in writing within 20 days pursuant to section 2105-165(e) (20 ILCS 2105/2105-165(e) (West

Supp. 2011)), which provides that a licensee may challenge a revocation by raising a defense

disputing the existence of a triggering event. The plaintiffs concede they were convicted of

the offenses triggering revocation under the Act and that they do not fall within any

recognized exception; thus, a hearing would not benefit them.

¶ 21 The plaintiffs, nevertheless, claim that the Act interferes with their right to a hearing

under section 22 of the Medical Practice Act (225 ILCS 60/22 (West 2010)), which provides

for a hearing process to determine one’s fitness to practice medicine. However, the plaintiffs’

licenses were not revoked pursuant to section 22 of the Medical Practice Act. Their licenses

were revoked pursuant to the Act, and the Act does not adopt any provision of the Medical

Practice Act. The Act explicitly provides that a license shall be revoked “notwithstanding any

other provision of law to the contrary.” 20 ILCS 2105/2105-165(a) (West Supp. 2011).

Accordingly, we reject the plaintiffs’ due process challenges to the Act, as well as their

argument that they were entitled to a hearing by statute.

¶ 22 Next, the plaintiffs assert that the revocation of their licenses violates the constitutional

prohibition against double jeopardy, because the Act imposes successive punishment for the

same offenses. We reject the argument because we conclude that the license revocations do

not constitute punishment.

¶ 23 The double jeopardy clauses in our federal and state constitutions bar multiple criminal

punishments for one offense. U.S. Const., amend. V; Ill. Const. 1970, art. I, § 10; Hudson

v. United States, 522 U.S. 93, 99 (1997); People v. Lavariega, 175 Ill. 2d 153, 155 (1997);

see In re P.S., 175 Ill. 2d 79, 91 (1997) (Illinois construes its double jeopardy clause in

lockstep with that of the federal constitution). Generally, a civil penalty is not considered a

punishment for the purposes of double jeopardy. Hudson, 522 U.S. at 99. However, if a civil

penalty is so punitive in nature or effect that it is the “functional equivalent” of a criminal

punishment, the penalty may violate the constitutional prohibition against double jeopardy.

Wilson v. Department of Revenue, 169 Ill. 2d 306, 312-13 (1996). When determining whether

a civil penalty is actually punitive in nature, a court must look first to the intent of the

legislature. Lavariega, 175 Ill. 2d at 155-56. If the legislature’s intent was to create a civil

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penalty, but the statute’s effects are clearly punitive, then the penalty constitutes a criminal

punishment and can be barred by the prohibition against double jeopardy. Id.

¶ 24 To determine whether a civil penalty is punitive for double jeopardy purposes, we apply

a seven-factor analysis that asks:

“(1) whether the sanction involves an affirmative disability or restraint; (2) whether it has

historically been regarded as a punishment; (3) whether it comes into play only on a

finding of scienter; (4) whether its operation will promote the traditional aims of

punishment, retribution, and deterrence; (5) whether the behavior to which it applies is

already a crime; (6) whether an alternative purpose to which it may rationally be

connected is assignable for it; and (7) whether it appears excessive in relation to the

alternative purpose assigned.” Bhalerao, 834 F. Supp. 2d at 788 (citing Kennedy v.

Mendoza-Martinez, 372 U.S. 144, 168-69 (1963)).

¶ 25 In analyzing these factors, we take guidance from Bhalerao, a federal district court

decision that rejected several of the challenges to the Act that the plaintiffs now raise,

including the argument that the Act violates the double-jeopardy clauses of the federal and

Illinois constitutions. See Bhalerao, 834 F. Supp. 2d at 789-92. Indeed, for the most part, we

follow the Bhalerao court’s analysis.

¶ 26 Under the first factor, a statute imposes an affirmative disability or restraint when “ ‘the

sanction in question smacks of the infamous punishment of imprisonment.’ ” Bhalerao, 834

F. Supp. 2d at 789 (quoting Cox v. Commodity Futures Trading Comm’n, 138 F.3d 268, 272-

73 (7th Cir. 1998)). The Act’s license revocation provision imposes a serious penalty on the

plaintiffs, but that penalty does not amount to imprisonment. Bhalerao, 834 F. Supp. 2d at

789. On the second factor, “the revocation of a voluntarily granted privilege, like a license,

is not something that courts have regarded as a punishment.” Bhalerao, 834 F. Supp. 2d at

789. Thus, the first two factors indicate that the Act is not punitive. However, the third

factor, which applies where the law is triggered by an event that requires scienter, indicates

punitive effect: the convictions that trigger the Act all require proof of scienter. Bhalerao,

834 F. Supp. 2d at 789.

¶ 27 The fourth factor, like the first two, indicates that the Act does not have punitive effect.

That factor asks whether the sanction promotes traditional goals of criminal punishment,

such as retribution and deterrence. As the Bhalerao court explained, the Act accomplishes

very little toward those goals, because, when the Act was enacted, professional licenses were

“already subject to possible revocation for [criminal convictions], and thus the change in the

law–from discretionary revocation to mandatory revocation–does not appear to have been

intended as an additional deterrent or retribution.” Bhalerao, 834 F. Supp. 2d at 790.

¶ 28 The fifth factor, on the other hand, indicates that the Act does have punitive effect,

because the Act is triggered by behavior that is already criminal. Bhalerao, 834 F. Supp. 2d

at 790. As for the sixth factor, we agree with the Bhalerao court’s reasoning that the Act has

alternative (i.e., nonpunitive) purposes–namely, the protection of public health and safety and

the maintenance of the integrity of the medical profession–and that those purposes are

actually the primary goals of the legislation. Bhalerao, 834 F. Supp. 2d at 790. Thus, the

sixth factor indicates nonpunitive intent.

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¶ 29 On the seventh factor, which asks whether the sanction is excessive in relation to its

nonpunitive purpose, we part ways with the Bhalerao court’s analysis. In determining that

the seventh factor indicated punitive intent, the Bhalerao court reasoned that the Act, though

enacted for a nonpunitive purpose, is excessive in light of the fact that the plaintiff had

practiced medicine without further reported incident during the time since the Department

declined to revoke his license. Bhalerao, 834 F. Supp. 2d at 791. If the immediate threat to

patients were the only harm the Act was designed to address, we might agree with Bhalerao

that a professional’s later good conduct could prove the Act’s sanction to be excessive. The

immediate threat, however, is not the only concern that animates the Act. As the Bhalerao

court itself explained, the State has a “ ‘legitimate concern for maintaining high standards

of professional conduct,’ ” because “ ‘[t]he practice of medicine, in addition to skill and

knowledge, requires honesty and integrity of the highest degree.’ ” Bhalerao, 834 F. Supp.

2d at 791 (quoting Kaplan v. Department of Registration & Education, 46 Ill. App. 3d 968,

975 (1977)). Further, as the Bhalerao court also noted, “allowing convicted healthcare

professionals to continue to practice would give them access to patients and patient

information, after they have already been found to have violated” “the special trust

relationship between a patient and healthcare professional.” Bhalerao, 834 F. Supp. 2d at

791. Even if the Act may have proven unnecessary to meet the immediate threat the Bhalerao

plaintiff, or the plaintiffs here, posed to their patients, it is necessary to avoid these other

harms caused by the plaintiffs’ continued practice. For that reason, we conclude that the Act

is not excessive in light of its nonpunitive purposes.

¶ 30 On balance, then, we conclude, as did the Bhalerao court, that the above factors do not

indicate punitive effect. Because we conclude that the Act creates a civil penalty without

punitive effect, we hold that it does not violate the constitutional protection against double

jeopardy when applied to the plaintiffs.

¶ 31 The plaintiffs also maintain that the Act violates the proscriptions against ex post facto

laws contained in article I, section 9, of the United States Constitution (U.S. Const., art. I,

§ 9) and article I, section 16, of the Illinois Constitution (Ill. Const. 1970, art. I, § 16) when

applied to individuals, such as themselves, whose only conviction for battery against a

patient in the course of patient care occurred prior to August 20, 2011, the effective date of

the Act. They argue that the Act imposes an additional penalty, the revocation of their

professional licenses, for a criminal act committed before its effective date. We reject this

argument too.

¶ 32 Illinois construes the ex post facto clause in the Illinois Constitution in lockstep with the

United States Supreme Court’s interpretation of the ex post facto clause in the federal

Constitution. Konetski, 233 Ill. 2d at 209. It has long been held that any law which changes

the punishment for a crime and inflicts a greater punishment than the law annexed to the

crime when committed is an unconstitutional ex post facto law. Kring v. Missouri, 107 U.S.

221, 228 (1883). The constitutional prohibition against ex post facto laws is aimed at

legislative enactments that retroactively alter the definition of crimes or increase the

punishment for criminal acts. California Department of Corrections v. Morales, 514 U.S.

499, 505 (1995). While the constitutional prohibition against ex post facto laws generally

applies only to penal statutes (Collins v. Youngblood, 497 U.S. 37, 41 (1990)), it has been

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applied to civil statutes which can fairly be characterized as punitive (Leach, 639 F.3d at

772).

¶ 33 The Act is undoubtedly a civil statute, as demonstrated by its placement in the Civil

Administrative Code (20 ILCS 5/1-1 et seq. (West 2010)). Whether it may be fairly

characterized as punitive is determined by the same seven factors used in double jeopardy

analysis. Smith v. Doe, 538 U.S. 84, 97 (2003) (applying same seven Kennedy factors used

in double jeopardy analysis to ex post facto analysis). We determined in our double jeopardy

analysis that the Act’s license revocation mandate constitutes a civil sanction, not a criminal

punishment. We believe the Act is nonpunitive in nature, its clear intent being the protection

of the health, safety and welfare of the public; and that it was not intended as additional

punishment for the plaintiffs’ past criminal acts. See Bhalerao, 834 F. Supp. 2d at 792-93.

Accordingly, because it is not punitive, the Act does not violate the proscription against ex

post facto laws.

¶ 34 Next, the plaintiffs argue that the Act violates the Illinois Constitution’s separation of

powers provision, which states that the legislative, executive, and judicial branches shall be

separate and that “[n]o branch shall exercise powers properly belonging to another.” Ill.

Const. 1970, art. II, § 1. The main objective of the separation of powers clause is to ensure

that no governmental branch coerces or dominates another branch’s functions. City of

Waukegan v. Pollution Control Board, 57 Ill. 2d 170, 175 (1974). Although the three

branches must maintain some separation, “[t]he Supreme Court has never considered that the

powers of government are held in rigidly separated compartments.” Id. at 175. Therefore, one

branch is not completely restricted from exercising functions typically associated with the

powers of another branch. Id. at 174-75. Here, we accept the plaintiffs’ position that the

Department, an administrative agency possessing both rule-making and adjudicatory

functions, entered the prior orders allowing the plaintiffs to retain or reinstated their licenses

by exercising its quasi-judicial functions. Based on this premise, the plaintiffs argue that the

Act violates separation-of-powers principles in two ways.

¶ 35 First, some plaintiffs argue that by providing for no hearing, the Act removes the courts’

ability to review the Department’s decisions to revoke their licenses. However, in our

discussion of due process, we concluded that a hearing is not required to settle the question

of whether a health care worker has had a conviction that triggers the Act. Thus, the lack of

a hearing does not interfere with judicial review.

¶ 36 Second, other plaintiffs argue that the Act violates separation-of-powers principles,

because the legislature passed it in order to overturn the Department’s previous decisions that

allowed the plaintiffs to retain their licenses or have them reinstated. While the General

Assembly may not pass a statute in an attempt to change the result of a judicial decision

which has been finally decided as between the parties, the legislature “has the authority to

change the law for future cases arising from facts existing prior to the effective date of the

legislation which made the change.” Sanelli v. Glenview State Bank, 108 Ill. 2d 1, 10 (1985).

That is exactly the situation in this case. As we stated earlier, although the Act may draw

upon antecedent convictions for its operation, it does not operate retroactively and does not

retroactively affect the Department’s previous decisions. By the same token, in passing the

Act, the legislature did not overturn the Department’s prior decisions; rather, it prospectively

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revoked licenses as of the Act’s effective date. We, therefore, reject the plaintiffs’ argument

that the legislature improperly exercised the Department’s quasi-judicial powers by passing

the Act in order to overturn previous decisions that reinstated or allowed the plaintiffs to

retain their licenses.

¶ 37 Next, some plaintiffs argue that application of the Act to them violates the contracts

clause contained in article I, section 16, of the Illinois Constitution, because it impairs the

consent orders that they entered into with the Department. The contracts clause provides that

“[n]o *** law impairing the obligation of contracts *** shall be passed.” Ill. Const. 1970,

art. I, § 16. In order to determine whether a law violates the contracts clause, a court will

consider whether (1) a contractual obligation existed; (2) the law impaired that obligation;

(3) the impairment was substantial; and (4) the impairment was reasonable and necessary to

serve an important public purpose. In re Marriage of Rosenbaum-Golden, 381 Ill. App. 3d

65, 75-76 (2008). In this case, the parties do not dispute that the plaintiffs’ consent orders

constitute contracts. See In re M.M.D., 213 Ill. 2d 105, 114 (2004). The parties also agree

that the Act substantially impaired the plaintiffs’ contractual rights, because it resulted in the

permanent revocation of their licenses, a result not contemplated by the terms of their

consent orders with the Department. The parties disagree, however, as to whether the

substantial impairment was reasonable and necessary to serve an important public purpose.

¶ 38 Courts generally defer to legislative judgment as to the necessity and reasonableness of

legislation (Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400, 412-

13 (1983)), but, as the plaintiffs point out, courts limit that deference where the State is a

party to a contract and there is a possibility that the State impaired a contract out of self-

interest (Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 505 (1987)). Even

under the less deferential standard, however, we conclude that the impairment caused by the

Act is reasonable and necessary to serve an important public purpose.

¶ 39 The plaintiffs argue that the revocation of their licenses is not reasonable and necessary

because their behavior following their convictions demonstrates that they now pose no

danger to their patients. In fact, the plaintiffs argue that their conduct demonstrates that their

consent orders actually served the public interest better than the Act’s mandatory license

revocation provision. The reasonableness of the consent orders, however, is not our concern:

our inquiry focuses on whether the Act is reasonable and necessary to serve an important

public purpose. We conclude that it is.

¶ 40 All contracts are subject to the police power of the State. Commonwealth Edison Co. v.

Illinois Commerce Comm’n, 398 Ill. App. 3d 510, 529 (2009); Lincoln Towers Insurance

Agency, Inc. v. Boozell, 291 Ill. App. 3d 965, 969 (1997). As a result, the State may infringe

on a person’s contractual rights in order to safeguard the interests of its people. Sanelli, 108

Ill. 2d at 23. The legislature promulgated the Act to protect the public from health care

workers who have been convicted of certain crimes, as a response to what the legislature

deemed to be inadequate oversight provided by the Department. Just as we stated that the Act

is not excessive to meet its nonpunitive goals for purposes of double-jeopardy analysis, we

conclude that the Act is not excessive for purposes of the contract-clause analysis. Even if

the plaintiffs’ continued practice without further complaint has proven the Act to be

unnecessary to meet any immediate threat to their patients, it is nonetheless necessary to stop

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other harm to public safety. The plaintiffs’ continued licensure interferes with the State’s

high standards for licensure of health care workers, and it degrades public trust in a

profession that depends on a “special trust relationship between a patient and healthcare

professional.” Bhalerao, 834 F. Supp. 2d at 791. Accordingly, we reject the plaintiffs’

argument that the Act’s application to them violates the contract clause of the Illinois

Constitution.

¶ 41 The plaintiffs also argue that the Act violates the proportionate penalties clause of article

I, section 11, of the Illinois Constitution (Ill. Const. 1970, art. I, § 11), because the permanent

nature of the punishment does not correspond to the seriousness of their respective offenses

and does not aid in their rehabilitation. Article I, section 11, provides, in pertinent part, that:

“[a]ll penalties shall be determined both according to the seriousness of the offense and with

the objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. The

proportionate penalties clause in the Illinois Constitution is interpreted in lockstep with the

federal constitution’s prohibition against cruel and unusual punishment. Konetski, 233 Ill.

2d at 206-07. Both provisions apply only where the government has inflicted a penalty upon

a criminal defendant. People v. Boeckmann, 238 Ill. 2d 1, 17 (2010).

¶ 42 For the reasons set forth in our double jeopardy and ex post facto analyses, we find that

the Act is nonpunitive in nature, because its purpose is to protect the health, safety and

welfare of the public, and not to punish health care providers, such as the plaintiffs, for past

criminal convictions. See Rios v. James, 63 Ill. 2d 488, 497 (1976); Bhalerao, 834 F. Supp.

2d at 791-93. Because the Act is not punitive, it cannot constitute a disproportionate penalty.

¶ 43 Next, some plaintiffs argue that the revocation of their licenses is barred by the doctrine

of res judicata. “The doctrine of res judicata provides that a final judgment on the merits by

a court of competent jurisdiction is conclusive as to the rights of the parties and their privies,

and as to them, constitutes an absolute bar to a subsequent action involving the same claim,

demand, or cause of action.” Dowrick v. Village of Downers Grove, 362 Ill. App. 3d 512,

515-16 (2005). The doctrine applies to “administrative decisions that are adjudicatory,

judicial, or quasi-judicial.” Dowrick, 362 Ill. App. 3d at 516. In the plaintiffs’ view, the

Department’s previous orders punishing them for their misconduct constitute judgments that

bar any further punishment against them for the same conduct.

¶ 44 Even if we were to assume that the Department orders or agreements here could have

preclusive effect, we would find no res judicata bar under the current facts. Normally, res

judicata works to prevent repetitious lawsuits over decided matters. Statler v. Catalano, 293

Ill. App. 3d 483, 486-87 (1997) (quoting City of Des Plaines v. Metropolitan Sanitary

District of Greater Chicago, 16 Ill. App. 3d 23, 24-25 (1973)). Thus, the doctrine extends

only to the facts and conditions that existed at the time the original judgment was entered.

A change in circumstances can create a new basis for a claim and thus obviate the danger of

repetitive litigation. See Statler, 293 Ill. App. 3d at 487 (quoting City of Des Plaines, 16 Ill.

App. 3d at 24-25). For those reasons, “[a] change in law occurring between two successive

causes of action on the same subject matter renders res judicata inapplicable.” Bernstein v.

Department of Human Services, 392 Ill. App. 3d 875, 895 (2009).

¶ 45 In this case, we have just such a change in law. At the time the Department entered its

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original orders punishing the plaintiffs, Illinois law did not require that their licenses be

revoked under the circumstances presented here. Now, license revocation is mandated by the

Act. Accordingly, the Department’s original orders reflected the Department’s determination

as to whether license revocation was warranted, while the Department’s current orders reflect

its administration of a law requiring revocation. The two orders respond to different issues,

and they were issued pursuant to different statutes. For these reasons, res judicata does not

apply.

¶ 46 To urge the opposite conclusion, the plaintiffs direct us to City of Des Plaines v.

Metropolitan Sanitary District of Greater Chicago, 59 Ill. 2d 29 (1974), a decision they

argue stands for the proposition that “a change in circumstances in law cannot affect the res

judicata effect of a judgment.” We disagree with the plaintiffs’ reading of City of Des

Plaines. In that case, the City of Des Plaines sought a declaration that its zoning ordinance

barred the district from constructing a water reclamation plant on land it had purchased in

the city. City of Des Plaines, 59 Ill. 2d at 29-30. The zoning issue had been adjudicated in

the district’s favor, but the City of Des Plaines argued that the intervening adoption of a new

state constitution altered the parties’ relationship, so that the old judgment should not have

res judicata effect. City of Des Plaines, 59 Ill. 2d at 30-31. The supreme court responded that

“the cause of action, the issues, the parties and the relief sought in this action [were] identical

to those in the earlier case” and that the constitutional change was “irrelevant.” City of Des

Plaines, 59 Ill. 2d at 31. In our reading, this language does nothing to upset the principle that

a change in law nullifies the doctrine of res judicata; the language explains instead that there

was no relevant change in law in City of Des Plaines. Here, by contrast, after the issuance

of the Department’s first orders, the law fundamentally changed to foreclose the once-

available option to allow professionals to keep their licenses under the circumstances

presented in this case. After this change in the law, the Department’s prior orders lost their

res judicata effect.

¶ 47 Finally, the plaintiffs argue that the statute of limitations and repose defenses under the

Medical Practice Act (225 ILCS 60/22(A) (West 2010)) and the Code (735 ILCS 5/13-205

(West 2010)) would preclude the Department’s revocation of their licenses if the Act did not

bar them from raising those defenses. They argue, therefore, that the Act violates their right

to substantive due process by depriving them of vested time-bar defenses. We disagree,

because the time-bar defenses on which the plaintiffs rely have no applicability to revocation

proceedings under the Act.

¶ 48 It is true that section 2105-150 of the Act provides that, for violations of the Medical

Practice Act, the Department must follow the provisions of that act, including its limitations

provision, prior to taking disciplinary action. 20 ILCS 2105/2105-150 (West 2010).

However, section 2105-150 applies to violations of the Medical Practice Act, not the

mandatory revocation provision of section 2105-165 (the Act).

¶ 49 The plaintiffs also contend that, because the Act contains neither its own limitations

provision nor an explicit provision adopting or barring another statutory limitations period,

we should infer that the limitation in section 13-205 of the Code applies. We disagree.

¶ 50 In interpreting a statute, we seek to ascertain and give effect to the intent of the

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legislature. People ex rel. Department of Labor v. K. Reinke, Jr., & Co./Reinke Insulation,

319 Ill. App. 3d 721, 726 (2001). In Reinke, the court considered whether the omission of a

limitations provision in section 12(b) of the Minimum Wage Law (820 ILCS 105/12(b)

(West 1998)) meant that the legislature intended that no limitation apply to actions brought

by the Department of Labor, or whether the legislature intended to adopt the limitation

provision contained in section 13-205 of the Code. Reinke, 319 Ill. App. 3d at 726. The

Reinke court reasoned that while there is no rule that the State can never be bound by a

statute of limitations, the determination of whether a government action is immune from a

statute of limitations depends upon “whether the right sought to be asserted is a right

belonging to the ‘general public’ rather than to the government or to ‘some small and distinct

subsection of the public at large.’ ” Id. at 726 (quoting City of Shelbyville v. Shelbyville

Restorium, Inc., 96 Ill. 2d 457, 462 (1983)). The Reinke court determined that actions

brought by the Department of Labor involved a right belonging to the general public, despite

the fact that the actions involved individual employees, because the public at large had an

interest in enforcing minimum wage laws. Id. at 726-27. It concluded that the “legislature

likely believed that an action by a State agency to enforce compliance with a wage law

involved a public right and was immune from statutes of limitation.” Id. at 727. In this case,

given that the stated legislative policy behind the Act focuses on the right of the general

public to be protected from unauthorized or unqualified health care professionals (20 ILCS

2105/2105-10 (West 2010)), we conclude that legislature believed the Act involved a public

right and that an action brought by the Department to enforce it should carry no limitations

provision. For that reason, even assuming that the Act creates a cause of action to which a

statute of limitations can apply, we interpret the legislature’s omission of a limitations period

in the Act as an indication that no limitations period should apply, not as an incorporation

of the general limitations period contained in section 13-205 of the Code.

¶ 51 Having found that the limitations defenses in the Medical Practice Act and the Code do

not apply to the Act and that the legislature intended that no limitation apply to license

revocations pursuant to the Act, we reject the plaintiffs’ contention that they were deprived

of their due process rights.

¶ 52 Because none of the counts in the plaintiffs’ complaints in issue state claims upon which

relief may be granted, the complaints were properly dismissed pursuant to section 2-615 of

the Code. We, therefore, affirm the judgments of the circuit court of Cook County.

¶ 53 Affirmed.

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