Weipert v. Illinois Department of Professional Regulation
785 N.E.2d 553
Ill. App. Ct.
2003
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*1 Moreover, presence of police officer at counsel table does not result in a presumption prejudiced. that the defendant was See People v. Leemon, (1977); Ill. 2d Miller, N.E.2d 573 v. People Ill. 2d 186 N.E.2d 317 There no indication from the record that defendant prejudiced by presence of Officer Gaughan at Accordingly, counsel table. claim defendant’s must fail.

CONCLUSION For foregoing reasons, judgment of the circuit court of La County Salle is affirmed.

Affirmed. LYTTON, JJ.,

SLATER and concur. WEIPERT, LARRY Plaintiff-Appellant, L. v. THE DEPARTMENT OF al., PROFESSIONAL REGULATION et Defendants-Appellees. Fourth District No. 4 — 01—1030 February 20, Opinion filed 2003.

COOK, J., dissenting. Stradt, Springfield, appellant. Ronald G. of for (Joel Bertocchi, Attorney General, Chicago D. Solicitor Ryan, of James E. counsel), General, Attorney appel- General, Racette, Assistant and Paul lees. of the court: opinion delivered the KNECHT

JUSTICE application an L. filed Larry Weipert, February plaintiff, In Regulation of Professional defendant, Department the Illinois with 2001, the In June as a detective. for licensure (Department), lacked the three because he Weipert’s application denied Department the Private required by section years’ experience work Detective, Alarm, Security, Private and Locksmith Private 2000)). (West (Private Act) (225 446/75(a)(6) July In Detective ILCS a in the circuit compliant filed for administrative review Weipert court, Weipert appeals, the decision. Department’s which affirmed apprenticeship arguing section is unconstitutional because its (2) (1) instruct, to grants right a to fails provision monopolistic licensees, to fails bear expertise prospective enhance the protecting public, to the end of the and relationship reasonable (U.S. Const., equal protection the federal and state clauses violates 2). XIV; I, § affirm. amend. Ill. Const. art. We

I. BACKGROUND Iowa, he is a Weipert resides where Davenport, February Weipert In by the State Iowa. application by for licensure endorsement with submitted April Department Weipert’s applica- In denied Department. to Weipert tion based on endorsement and refused to allow sit for Department Weipert detective examination. The informed experience requirement years’ Illinois. received two Weipert administra- degree education credit for his baccalaureate business tion, year qualifying experience but he still needed one more work Department five then years. Weipert requested within the last his application. supervi- reconsider his submitted a letter from Insurance, he claims years sor at State Farm where worked experience in representative. Weipert’s The letter detailed “extensive investigations.” to sit Department Weipert’s application

In June denied he to meet for the detective examination because failed stated, no “There is requirement. ap- credit gives Department authority give that provision *4 investigator company.” an an plicants for as for insurance review, chal- July 2001, Weipert complaint In filed a for administrative 75(a)(6) Detec- constitutionality of the Private lenging the of section hearing held and af- 2001, the circuit court a tive Act. In October This followed. Department’s appeal firmed the decision.

286

II. ANALYSIS A. Forfeiture Initially, we note forfeited his constitutional chal 75(a)(6) lenge to section of the Private Detective Act because he did not it U.S.A., raise before the Carpetland administrative agency. Inc. v. Employment 351, Illinois 201 Security, Ill. 396-97, 2d of (2002). 166, 776 N.E.2d 192 A party’s right question validity to of a is subject statute though forfeiture even agency administrative lacks authority a grounds. invalidate statute on constitutional Carpetland, 397, 201 Ill. 2d at party 776 N.E.2d at 192. A should as challenge sert a on record before constitutional the administrative tribunal because review administrative is confined to the proof offered 397, before agency. Carpetland, Ill. 201 2d at 776 N.E.2d at 192. However, parties forfeiture is a limitation on the rather than on jurisdiction, this may court’s and we relax the forfeiture doctrine necessary when body precedent to maintain a uniform or where the justice interests of require. Carpetland, 397, so 201 Ill. 2d at 776 N.E.2d at 192. present We deem this case to one those occasions.

B. Standard of Review This court constitutionality reviews the of a de statute novo. (2001). 996, Young, App. Schober v. 3d 612 751 N.E.2d heavy bear Statutory enactments a presumption constitutionality. Bower, Toney v. Ill. App. 3d party constitutionality A challenging of a statute has the clearly

burden establishing invalidity. Toney, its Ill. at 1198, 744 N.E.2d at must all 356-57. Courts resolve doubts favor of constitutionality. Toney, statute’s N.E.2d 357.

C. Section of the Private Detective Act Weipert challenges constitutionality of Act, requires Private Detective which a applicants for license have years’ experience during detective three the last five years “working agency full-time a registered private a employee” “employed or as a full- time a licensed in a or law enforcement [sjtate subdivision, agency political federal or which shall include [djefender’s or a [pjublic State’s office office.” ILCS 446/75(a)(6) (West 2000). degree a baccalaureate science or a

Applicants with field, given or are credit for two the three degree, related a business degrees years’ required experience. Applicants with associate’s

287 years’ required experi- for one of the three given fields are credit those 2000). 446/75(a)(6) (West ence. 225 ILCS Test Apprenticeship D. two-part to determine has a test supreme court established provi the constitutional: apprenticeship provision is

whether conferring on effect, implemented, when must not have the sion instruct, it must and monopolistic right the a members of trade requires that it way apprenticeship a the be structured such Johnson licensees. expertise prospective to enhance the calculated 508, 512, App. 308 Ill. 3d Regulation, v. Department of Professional 441, 2d 354, (1999), Johnson, v. 68 Ill. citing People 720 N.E.2d 357 898, 447, 901 Instruct

1. To Monopolistic Right 75(a)(6) of the Detective Weipert first contends section Private (225 446/75(a) (6) (West 2000)) ILCS is unconstitutional because grants monopolistic right a to instruct. apprenticeship provision its Johnson, App. cites 3d at 720 at Weipert N.E.2d 75(a)(6) a as previous which this court invalidated version prongs apprenticeship unconstitutional under both of the test. plaintiffs applied licensing private Johnson involved two as who with plaintiff employed investigator detectives: one was as a full-time a office, employed the a full-time private law and other was as Johnson, Ill. investigator county public with a office. 308 defender’s App. plaintiffs applied, 720 N.E.2d at 355. work When way to ing investigator only as a full-time enforcement was the law being registered private a detec qualifying experience obtain without Johnson, 308 Ill. at at 356. employee. tive 3d N.E.2d right found a and concluded monopolistic This court to instruct experience expertise work not to enhance the required calculated Johnson, 513-14, prospective licensees. 358. N.E.2d at Assembly

Johnson is because has since inapposite the General types by amending section expanded qualifying 75(a)(6) (Pub. (2000 815, 5, § eff. June Ill. Laws Act 91— 1412)). experience require A prospective licensee can meet working attorney” “for a by ment as a full-time licensed [djefender’s or “a office or office.” [p]ublic State’s 446/75(a)(6) (West 2000). ILCS matter argues detective, no

Weipert he cannot become a qualified is, agency, unless a how well he licensed attorney, so asserts agency or law enforcement wills. in a activ- engage legitimate denied him a right ity of his Weipert’s choice. are contentions without merit. The issue is whether section confers on detective business a monopolistic right to instruct.

Under section amended, a prospective licensee can obtain required experience by working outside the private detective business as a full-time investigator for a licensed attorney, State’s Attorney’s office, or a public defender’s office. employers Those are exempt from provisions of the Private Detective Act. 225 ILCS (a)(2) (West 2000). 446/30(a)(l), Weipert does not assert employ- those ers have incentive to restrict entry into the private detective busi- ness, nor does he claim those alternatives to working for a licensed private detective agency are illusory. Weipert has not carried his clearly burden of establishing section

75(a)(6) as amended has the granting effect of *6 business a monopolistic right to instruct.

2. Calculated To Enhance Expertise 75(a)(6) Weipert next argues section of the Private Detective Act is unconstitutional because its apprenticeship provision fails to expertise enhance the prospective of licensees.

However, Weipert does not claim experience working as an investigator for a licensed attorney, a Attorney’s office, State’s or a public defender’s office would not expertise enhance the prospective Instead, licensees. Weipert believes the legislature should have allowed investigative experience for an company insurance qualify as well. Drawing the line in deciding type what of investigative experience qualifies is a matter for legislative, judicial, rather than consideration. See Cutinello v. Whitley, 409, 161 421, 360, Ill. 2d 641 N.E.2d 365 (1994). Weipert has carry failed to burden clearly establishing his sec- tion is not calculated to expertise enhance the prospective licensees.

E. Due Process Weipert asserts section fails to a bear reasonable relationship the end of protecting public the because it cannot be structured to enhance Weipert’s “impressive” investigative experi ence. disagree. We State,

The pursuant to its inherent powers, may regulate protection businesses for the public health, of the safety, and welfare. Johnson, App. 308 Ill. 3d at 720 N.E.2d at 357. The police power, however, limits, has constitutional and measure enacted or adopted its exercise must bear some reasonable relation to the purposes power may for which the City be exercised. Hanna v. (2002). 295, 305, Chicago, App. 331 Ill. 3d 771 N.E.2d 21

289 a fundamental not affect does challenged statute the When to determine basis test the rational apply we right, constitutional v. Russell process. due violates whether statute (1998). 1056, 434, 446, N.E.2d Resources, Ill. 2d Natural valid, party and the to be test, the statute presume this we Under that the statute proving has the burden challenging statute 728, 732, 756 N.E.2d Fuller, App. 324 Ill. 3d People irrational. v. (2001). legislature whether role is not to determine Our ad resolving problems effective means chosen the best or most 635, 640, Falbe, 727 N.E.2d 189 Ill. 2d by People a v. dressed statute. basis long as a conceivable uphold a statute as We will Fuller, exists. relationship a rational finding for at 258-59. 756 N.E.2d from public protecting has an interest legislature The 446/95(c) (West 2000) detectives. See 225 ILCS unskilled and knowledge amount of (examinations, test the minimum which duties, protecting are in the interest of needed to perform skill for may reasonably require applicant legislature public). as a apprenticeship, such as an practical experience, licensure to have Johnson, licensure. prerequisite to

at 357. registered private employee a

Although working as detect- undoubtedly provides practical experience the most right to instruct. ing, legislature may monopolistic not confer a Thus, qualify, legislature investigative allows other as an only prospective but if the licensee works of a federal or State agency or a law enforcement subdivision, a State’s office or political which includes office. public defender’s *7 75(a)(6) is a reason- in section experience requirement

We hold the protecting public. achieving legislature’s goal able means of types to limit the conceivably could have decided legislature legisla- in the investigative experience positions, to those qualifying registered private match to a judgment, providing ture’s the closest “investigat- Many jobs differing degrees of employee. provide too complex. those differences could be ing” experience, measuring but equal hand, experience rule on simple qualifying On the other public. fail to many occupations protect from too could basis superior at State Farm is experience not demonstrated his Weipert has 75(a)(6) for in section any types qualifying experience of the private detective. purposes becoming a licensed 75(a)(6) section carry proving failed to his burden of Weipert has is irrational.

F. Equal Protection 75(a)(6) Weipert claims section violates the state and federal equal protection clauses. Weipert adjusters notes insurance and law enforcement are exempt both Act, from the Private Detective but adjuster as an insurance does qualify not under section 75(a)(6). 75(a)(6)

Because section neither affects a right fundamental nor suspect classification, involves a employ we the rational basis test. (2001). 50, 59, Miller v. Rosenberg, 196 Ill. 2d 749 N.E.2d If any set of can reasonably facts be conceived to justify the classifica tion, it upheld. Miller, must be 196 Ill. 2d at 749 N.E.2d at If 952. the reasonableness of the statute fairly debatable, is this court will legislative defer to the judgment and uphold the People statute. v. Mc Cormick, 332 App. Ill. 774 N.E.2d stated,

As the legislature conceivably could have decided to limit types qualifying investigative experience to positions, those the legislature’s judgment, providing the closest match registered to a employee. Weipert has not experi- demonstrated his ence at State Farm superior of the types qualifying experi- 75(a)(6) ence for purposes becoming licensed Weipert detective. has failed to carry his burden of demonstrating the legislature’s classification in section is unreasonable. Finally, Weipert argues section equal protec violates tion requires because it prospective licensees to be registered while working licensed detective agencies but not while working for a However, or in law enforcement.

no standing to raise this issue. See Bruso v. Alexian Hospital, Brothers (to 445, 460, 178 Ill. 2d standing have claim, raise an equal protection the party must be a member of the discriminates). against class whom the allegedly statute We conclude the did not err in denying Weipert’s ap- plication to sit for the detective examination.

III. CONCLUSION stated, For the reasons affirm judgment. we the trial court’s Affirmed.

MYERSCOUGH, EJ, concurs. COOK,

JUSTICE dissenting: problems There have been with the Private Detective over years. *8 portion 1995, court held unconstitutional supreme

In contrac private for alarm licensing Act requiring the Private Detective (1995) 153, 168, N.E.2d State, 164 Ill. 2d tors. Church v. (“No instruction, train may by be qualified person matter well how her free never of his or own he or she can ing[,] prior experience, or member of unless a private a licensed alarm contractor will become him her on a full-time basis industry willing is to hire or regulated (emphases capacity” in a requisite period particular for the added)). time of the portion In this court held unconstitutional detectives dealing licensing private Private Detective with years five work required years’ experience during that three the last agency or a full-time ing private full-time for a licensed detective Johnson, investigator agency. in a enforcement law (“No justification limiting for appears 720 N.E.2d at 358 [Private Detective] the broad areas of the covered police by Act to retired officers and those selected business”). adding Act has one of history

The of the Private Detective been many exceptions challenge Department its whenever a is made. The Johnson, sought appeal appeal our decision in and leave to granted by supreme court. The then chose to appeal, prospective withdraw its and the statute was amended to allow the experience requirement by working licensees to meet as a full-time investigator “for a “a attorney” licensed or for State’s of 815, 5,§ [p]ublic [defender’s fice or a office.” Pub. Act eff. June 91— (2000 1412). narrowly Ill. Laws The amendment was plaintiffs potential litigants. tailored to eliminate the in Johnson as question before the amendment solves the now us is whether problems constitutional of the Detective Act. Private aside, for a although As an work as a full-time experience requirement, now suffices to meet the the Private attorneys not employees Detective Act was amended to allow the Johnson, investigators. work as See (“Attorneys may

at 356 look for and talk to witnesses without a (225 446/30(2) (West 1996)) appears detective’s license ILCS but it not”). their paralegals may Employees agencies of law enforcement may perform investigations violating without the Private Detective 446/30(a)(l) (West 2000). Act. 225 Employees ILCS of insurance adjusters may perform investigations violating the Private without (West 2000). 446/30(a)(4) Detective Act. 225 ILCS The statute contains only attorney- no such exemption employees attorneys, “[a]n engaging practice licensed to in the practice at-law Illinois while 446/30(a)(2) (West 2000). law.” 225 ILCS Should the be the domain of business exclusive retired they employ? officers and those choose to The definition of “private very detective” is a broad one. A detective’s license required of anyone any investigations, who means makes for a by fee, crimes; conduct, cetera, identity, credibility et “of *9 (3) firm, association, person, corporation”; property; or lost or stolen (4) fires, responsibility accidents, injuries; the cause or “[t]he or statement”; falsity any leading “[s]ecuring truth or of or court,” board, evidence to be used before any or committee. 225 ILCS (West 2000). everybody private Under that definition almost is a 446/5 detective.

“Every in employee investigates anything who the course of license, employment, private arguably his or her without a detective’s Johnson, [Private Detective] violates the Act.” 308 Ill. App. 720 N.E.2d at 356. definition, Weipert, adjuster,

Under the above as an insurance acting private past years. been for the Insurance adjusters investigations crimes, credibility make and of identity persons, or stolen of and property, responsibility lost the cause for ac cidents, statements, the truth or and to The falsity secure evidence. adjusters recognizes Private Detective Act itself that insurance perform private the work of detectives. The Private Detective Act adjusters problem by exempting resolves that insurance from its cover (West 2000). 446/30(a)(4) age. majority 225 ILCS The tells us that investigative “[d]rawing deciding type experience the line what legislative, judicial, than consideration.” qualifies is a matter for rather The App. legislature 337 Ill. 3d at 288. The did draw the line. adjusters legislature, by exempting requirements insurance from the Act, adjusters recognized of the Private Detective that insurance private and are detectives. perform capable performing do, detectives while he things private could do acting adjuster. as an insurance What sense does it make doing things from he has done for the last prohibit Weipert same if years longer employed by company? he is no an insurance “Given Act, Detective] the breadth of section 5 of the some covered [Private than training and fields other investigations require Johnson, Ill. 3d at 720 N.E.2d at 358. It is police work.” qualified is better than policeman difficult to understand how a retired cause, origin, or adjuster investigate “[t]he a former insurance fires, accidents, injuries personal or to real or responsibility for 2000) (definition 446/5(4) (West detec “private property.” 225 ILCS tive”). licensing where a court was critical of a scheme supreme

The free will become “can never of his or her own qualified person regulated a member of the alarm contractor unless private for the him her on a full-time basis industry willing to hire or is added.) capacity.” (Emphases in a requisite period particular time majority would Church, 646 N.E.2d at 580. narrowly: “The issue is “regulated industry” phrase define the detective business a private confers on the whether section original.) (Emphasis to instruct.” monopolistic right view, business majority’s 3d at 288. Under the in a “investigator as an law monopoly does not have a because work suffices; statutory applicants satisfy can agency” enforcement sug I for a licensed detective. requirements working without rejects argument. The Private Detective gest that Johnson that essentially detective business the exclusive domain makes they employ. Allowing and those choose to police of retired officers does not retired officers to become licensed detectives license; very it provide independent alternate route to a in Johnson. monopolistic practice which was criticized found in According majority, problems to the the constitutional we longer legislature expanded Johnson no exist because the “has since 75(a)(6).” *10 by amending types qualifying correctly 3d at 287. If it is conceded that Johnson was problem decided and there a constitutional before the amendment was (the concede), accept does not so it is difficult to that the very problem. limited amendment which made solves that There (and large adjusters seem to be a of insurance oth population would ers) readily qualify by working who could not as detectives full-time for a licensed or a State’s office or a that, Church, majority recognizes office. The under public defender’s industry scheme where a can “never” become licensed without person majority distinguish would a scheme approval is unconstitutional. “hardly industry can become without person where the ever” contrary I to the approval. suggest approach that formalistic holding substance of the in Church.

Section of the Private Detective Act is unconstitutional. Act, amended, control monopolistic The Private Detective as affords over the retired officers and those police detective business to they employ detectives. There is no rational distinction protection between and retired officers insofar as I of the circuit general public is concerned. would reverse the decision court.