JOHN DOE THREE, Plaintiff-Appellee, v. THE DEPARTMENT OF PUBLIC HEALTH and NIRAV D. SHAH, M.D., J.D., Director of Public Health, Defendants-Appellants.
Docket No. 1-16-2548
Appellate Court of Illinois, First District, First Division
May 22, 2017
2017 IL App (1st) 162548
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 15-CH-16766; the Hon. Neil H. Cohen, Judge, presiding. Judgment: Affirmed in part and reversed in part; cause remanded.
Michael K. Goldberg, Robert A. Bauerschmidt, and Jean Milaeger, of Goldberg Law Group, of Chicago, for appellee.
PRESIDING JUSTICE CONNORS delivered the judgment of the court, with opinion.
Justices Harris and Mikva concurred in the judgment and opinion.
¶ 1 Plaintiff John Doe Three petitioned the Department of Public Health (Department) to add “chronic post-operative pain” (CPOP) as a “debilitating medical condition” under the Compassionate Use of Medical Cannabis Pilot Program Act (Act) (
BACKGROUND
¶ 2 The Act, which became law in Illinois effective January 1, 2014, recognizes that using medical cannabis may help treat or alleviate symptoms associated with “debilitating medical conditions.”
¶ 3 The Act distinguishes between “medical and non-medical uses of cannabis” and removes state criminal penalties for the medical use of cannabis if certain conditions are satisfied.
¶ 4 The Department promulgated a rule governing such petitions, which provided that an advisory board would then “review petitions and recommend to the Department additional debilitating conditions or diseases that would benefit from the medical use of cannabis.”
¶ 5 On March 2, 2015, plaintiff submitted a petition to the Department seeking to add CPOP as a debilitating medical condition under the Act. The petition described his suffering from CPOP
¶ 6 A public hearing was held on the petition, as well as other petitions, seeking to add other medical conditions to the Act. At the hearing, the advisory board members considered plaintiff‘s petition and supporting materials, and then voted. Of the 10 members, 7 voted to approve the petition, while 3 voted not to.
¶ 7 On October 20, 2015, despite the recommendation of the advisory board, the Director denied plaintiff‘s petition, finding that “there was not substantial evidence from adequate, well-controlled clinical trials to support the use of cannabis in the setting of chronic post-operative pain. Therefore, the safety and efficacy for this medical condition cannot be assured.” Prior to issuing his decision, the Director added articles to the record which were not presented by any of the parties prior to the hearing.
¶ 8 Plaintiff then filed a complaint for administrative review, seeking reversal of the Director‘s denial of his petition. The circuit court found that the Director “clearly violated” the Department‘s rules governing the consideration of petitions to add debilitating conditions to the Act by considering materials outside the petition. The circuit court noted that under the applicable administrative rules, the Director was to review the advisory board‘s recommendations and render a final decision.
¶ 9 The circuit court also noted that the standard set forth in the Department‘s rules for adding a medical condition was whether the debilitating condition or disease at issue would benefit from the medical use of cannabis. However, in rendering his decision, the Director considered whether there was substantial evidence from adequate, well-controlled clinical trials to support the use of cannabis for the treatment of CPOP, which “appears nowhere in the Act or the Department‘s rules.”
¶ 10 The circuit court reversed the Director‘s decision but remanded “for the issuance of a new decision by the Director. The Advisory Board was not unanimous in its recommendation regarding CPOP. The Director should have the opportunity to consider the addition of CPOP under the correct standard.”
¶ 11 The Department and the Director then filed a motion to reconsider in light of the Department‘s emergency rules that were filed with the Illinois Secretary of State on August 1, 2016 (40 Ill. Reg. 10992 (emergency rule eff. Aug. 1, 2016)).3 On June 30, 2016, section 45 of
the Act was amended by Public Act 99-519. See Pub. Act 99-519 (eff. June 30, 2016). The amendment disbanded the advisory board but allowed the Governor to appoint a new advisory board. Pub. Act 99-519 (eff. June 30, 2016) (adding
“The Department shall accept petitions once annually for a one-month period determined by the Department. During the open period, the Department shall accept petitions from any resident requesting the addition of a new debilitating medical condition or disease to the list of approved debilitating medical conditions for which the use of cannabis has been shown to have a therapeutic or palliative effect. The Department shall provide public notice 30 days before the open period for accepting petitions, which shall describe the time period for submission, the required format of the submission, and the submission address.” Id. (adding
410 ILCS 130/45 (b) ).
¶ 12 The circuit court found that those rules did not apply retroactively to the Director‘s decision on plaintiff‘s petition to add CPOP as a debilitating medical condition under the Act, “as the Director‘s [d]ecision under review in this case pre-dates the filing of the Department‘s emergency rules.” The circuit court also found that the standard set forth in the Department‘s emergency rules (40 Ill. Reg. 10992, 11012 (emergency rule eff. Aug. 1, 2016) (amending
¶ 13 The circuit court then amended its order reversing the Director‘s decision denying plaintiff‘s petition and ordered the Director to add CPOP “by rule in accordance with the Administrative Procedure Act.”
ANALYSIS
¶ 14 The Department and the Director now appeal, arguing that (1) the circuit court lacked subject-matter jurisdiction over plaintiff‘s action because section 45 of the Act does not expressly adopt the Review Law as the method for reviewing a Director‘s final decision, (2) even if judicial review may proceed, the Director‘s decision was quasi-legislative and should be upheld because it was not arbitrary or capricious, and alternatively, (3) if this court affirms the circuit court‘s reversal of the Director‘s decision, it should remand the case to the Department and allow the amended regulations to apply since the amendments were procedural in nature and not substantive.
¶ 15 Subject-Matter Jurisdiction
¶ 16 The first issue is whether the circuit court had subject-matter jurisdiction to review the decision of the Director. The Department and the Director contend that while plaintiff invoked the Review Law in his complaint and cited section 45 of the Act as the statutory provision that adopted the Review Law as a method for review, the plain language of section 45 does not
¶ 17 Section 155 of the Act is titled “Review of administrative decisions,” and states that “[a]ll final administrative decisions of the Departments of Public Health, Department of Agriculture, and Department of Financial and Professional Regulation are subject to direct judicial review under the provisions of the [Review Law] and the rules adopted under that Law.”
¶ 18 The Department and the Director contend, citing Bank of America, N.A. v. Kulesza, 2014 IL App (1st) 132075, ¶ 20, that section 155‘s invocation of the Review Law is meaningful because the express inclusion of a provision in one part of a statute and its omission in a parallel section is an intentional exclusion from the latter. Defendants contend that the Act creates various methods of review, like sections 65(f) and 185(b), that both use the same language as section 45 regarding judicial review (
¶ 19 An administrative agency‘s decision is subject to review under the Review Law only where “the Act creating or conferring power on such agency, by express reference, adopts the provisions of [the Review Law].”
¶ 21 The other two cases cited by defendants are also inapposite for the same reason. See Portman v. Department of Human Services, 393 Ill. App. 3d 1084, 1086-87 (2009) (the Public Aid Code did not expressly make the Review Law applicable to agency decisions regarding child care assistance even though the Review Law was adopted to review other decisions of that agency in the same statute); Chicago Title Land Trust Co. v. Board of Trustees, 376 Ill. App. 3d 494, 499 (2007) (Review Law did not apply to decision of board of trustees where statute made Review Law applicable only to decision of board of appeals). We reiterate that section 155 of the Act expressly adopts the Review Law and specifically states that it applies to “all” final decisions of the Department.
¶ 22 Additionally, we reject defendants’ argument in their reply brief, relying on Illinois Supreme Court Rule 335 (eff. Jan. 1, 2016), that if plaintiff was seeking judicial review under section 155 then he would have to file a petition directly in the appellate court. Rather, the Review Law, which is expressly adopted by the Act, provides that “[j]urisdiction to review final administrative decisions is vested in the Circuit Courts, except as to a final order of the Illinois Educational Labor Relations Board in which case jurisdiction to review a final order is vested in the Appellate Court.”
¶ 23 Director‘s Decision
¶ 24 Turning to the merits, we note that on appeal we review the administrative agency‘s decision and not the circuit court‘s determination. Anderson v. Department of Professional Regulation, 348 Ill. App. 3d 554, 560 (2004). “The applicable standard of review, which determines the degree of deference given to the agency‘s decision, depends upon whether the question presented is one of fact, one of law, or a mixed question of law and fact.” AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 390 (2001). The factual findings of the administrative agency are considered to be prima facie correct and will be reversed only if against the manifest weight of the evidence.
¶ 26 At the time plaintiff submitted his petition, the Act stated that the Department “shall consider petitions in the manner required by Department rule.”
¶ 27 The Department rules further stated that upon final determination, the advisory board “shall provide the Director a written report of findings recommending either the approval or denial of the petitioner‘s request. The written report of findings shall include a medical justification for the recommendation based upon the individual or collective expertise of the Advisory Board membership. The medical justification shall delineate between the findings of fact made by the Advisory Board and scientific conclusions of evidence-based medical research.”
¶ 28 In the case at bar, the Director determined that “there is not substantial evidence from adequate, well-controlled clinical trials to support the use of cannabis ***. Therefore, the safety and efficacy for this medical condition cannot be assured.” The record reveals that the Director reviewed plaintiff‘s petition, the evidence submitted in support, the hearing transcript, and the advisory board‘s recommendation. Additionally, the record includes various other medical articles that the Director reviewed.
¶ 29 We find that the Director did not follow Department rules when rendering his decision in this case, in violation of the Act‘s mandate that the Department “shall consider petitions in the manner required by Department rule.”
¶ 30 Effect of New Amendments
¶ 31 Our determination that the Director‘s findings were invalid leads us to the next question, which is whether upon remand the Department is to follow the old guidelines for adding a debilitating medical condition or the new ones. This requires a determination of whether the amendments to the Act, which were added after the Director made his initial decision, apply retroactively. The question of whether an amendment applies retroactively depends upon whether the amendment makes a substantive change or a procedural change to the law.
¶ 32 Illinois courts have developed a three-tiered test to determine retroactivity. First, has the legislature clearly indicated the temporal or retroactive reach of the amended statute? Commonwealth Edison Co. v. Will County Collector, 196 Ill. 2d 27, 38-39 (2001). If not, is the amendment procedural or substantive in nature? People v. Glisson, 202 Ill. 2d 499, 508 (2002). Only those amendments that are procedural in nature may be applied retroactively. Id. And finally, if the statute is procedural, does it have a “retroactive impact?” Commonwealth Edison, 196 Ill. 2d at 38-39. Absent retroactive impact, the amended statute will apply. Id. Whether an amendment to a statute will be applied prospectively or retroactively is a matter of statutory construction that we review de novo. People v. Blanks, 361 Ill. App. 3d 400, 407 (2005).
¶ 33 Here, the amendments are silent about their retroactive application. Thus, we must determine whether the changes are procedural or substantive in nature. As our supreme court has observed, “the line between ‘substance’ and ‘procedure’ may often be unclear.” Rivard v. Chicago Fire Fighters Union, Local No. 2, 122 Ill. 2d 303, 310 (1988). “Procedure is the machinery for carrying on the suit, including pleading, process, evidence and practice, whether in the trial court, or in the processes by which causes are carried to the appellate courts for review, or in laying the foundation for such review.” Ogdon v. Gianakos, 415 Ill. 591, 596 (1953). “Generally, a procedural change in the law prescribes a method of enforcing rights or involves pleadings, evidence and practice.” Schweickert v. AG Services of America, Inc., 355 Ill. App. 3d 439, 442 (2005). On the other hand, a substantive change in the law establishes, creates, or defines rights. Id. at 443.
¶ 34 In the case at bar, we agree with the circuit court that the amendments were substantive in nature, not procedural, and are therefore not retroactive. The circuit court found, focusing on 40 Ill. Reg. 10992, 11012 (emergency rule eff. Aug. 1, 2016) (amending
¶ 35 Before the amendments, as long as the petition met all the requirements, the petition received a hearing by the advisory board. The advisory board then reviewed petitions and recommended to the Department “additional debilitating conditions or diseases that would benefit from the medical use of cannabis.”
¶ 36 Moreover, we note that there is a long-standing rule that prospective application of statutes is to be preferred to retroactive application because of the fundamental principle of jurisprudence that the retroactive application of new laws is usually unfair and the general consensus that notice or warning of the rule should be given in advance of the action whose effects are to be judged. Moshe v. Anchor Organization for Health Maintenance, 199 Ill. App. 3d 585, 598 (1990). “As a general rule, an amendatory statute will be construed prospectively rather than retroactively; the presumption of prospectivity is rebuttable, but only by the act itself which, either by express language or necessary implication, must clearly indicate that the legislature intended a retroactive application.” Harraz v. Snyder, 283 Ill. App. 3d 254, 259 (1996) (citing Rivard, 122 Ill. 2d at 309). Here, there is absolutely no language suggesting retroactivity, and in fact, after the Act and the Administrative Code were amended, the Department stated that it was adopting additional emergency amendments to the previous Administrative Code emergency rulemaking (40 Ill. Reg. 10992 (emergency rule eff. Aug. 1, 2016)) to clarify the fee structure and the process used for the review of petitions “in January 2016.” 40 Ill. Reg. 13732 (emergency rule eff. Sept. 16, 2016). Plaintiff filed his petition in March 2015.
¶ 37 Accordingly, for the reasons set forth above, we affirm in part the judgment of the circuit court of Cook County insomuch as it reversed the Director‘s decision denying plaintiff‘s petition, but we reverse the portion of the circuit court‘s order directing the Director to “add CPOP by rule *** within thirty (30) days of entry.” We remand to the Director for consideration in accordance with the preamendment Act (
¶ 38 Affirmed in part and reversed in part; cause remanded.