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                                     Appellate Court                             Date: 2017.09.18
                                                                                 08:54:13 -05'00'




             Doe Three v. Department of Public Health, 2017 IL App (1st) 162548



Appellate Court         JOHN DOE THREE, Plaintiff-Appellee, v. THE DEPARTMENT OF
Caption                 PUBLIC HEALTH and NIRAV D. SHAH, M.D., J.D., Director of
                        Public Health, Defendants-Appellants.



District & No.          First District, First Division
                        Docket No. 1-16-2548



Rule 23 order filed     March 13, 2017
Motion to publish
allowed                 May 3, 2017
Opinion filed           May 22, 2017



Decision Under          Appeal from the Circuit Court of Cook County, No. 15-CH-16766; the
Review                  Hon. Neil H. Cohen, Judge, presiding.



Judgment                Affirmed in part and reversed in part; cause remanded.


Counsel on              Lisa Madigan, Attorney General, of Chicago (David L. Franklin,
Appeal                  Solicitor General, and Nadine J. Wichern, Assistant Attorney General,
                        of counsel), for appellants.

                        Michael K. Goldberg, Robert A. Bauerschmidt, and Jean Milaeger, of
                        Goldberg Law Group, of Chicago, for appellee.
     Panel                      PRESIDING JUSTICE CONNORS delivered the judgment of the
                                court, with opinion.
                                Justices Harris and Mikva concurred in the judgment and opinion.


                                                   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) (410 ILCS 130/1 et seq.
       (West 2014)). The Director of the Department, Nirav D. Shah, M.D., J.D., denied the petition,
       and plaintiff sought judicial review under the Administrative Review Law (Review Law) (735
       ILCS 5/3-101 et seq. (West 2014)). The circuit court reversed and remanded the case to the
       Department for further proceedings. The Department then asked the circuit court to reconsider
       its decision based on the fact that the Illinois General Assembly had recently amended the Act
       to reflect new procedures when attempting to add conditions to the list of debilitating medical
       conditions. The Department filed a motion to reconsider, asking the circuit court to reconsider
       its order in light of the new provisions. The circuit court amended its previous order to outright
       reverse the Department’s findings, without remand, and directed the Director to add CPOP to
       the list of “debilitating medical conditions” under the Act within 30 days of its order. The
       Department and its Director now appeal.1

¶2                                           BACKGROUND
¶3         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.” 410 ILCS 130/5(b) (West 2014). 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. 410 ILCS 130/5(g) (West 2014). At the time
       plaintiff petitioned the Department, the Act provided that any citizen could petition the
       Department to add debilitating conditions or treatments to the list of debilitating medical
       conditions listed in subsection (h) of section 10 of the Act. 410 ILCS 130/45 (West 2014).
¶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.” 77 Ill.
       Adm. Code 946.30(b) (2014).2
¶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

            This court stayed enforcement of the circuit court’s amended order pending this appeal.
             1

             2
            The administrative rules found in title 77, part 946, section 30, of the Illinois Administrative Code
       were adopted on July 29, 2014. 38 Ill. Reg. 17367, 17382-87 (eff. July 29, 2014). At the time Plaintiff
       submitted his petition to the Department, an emergency rule was in place that amended title 77, part
       946, section 30(a), of the Illinois Administrative Code but did not make any changes to the remaining
       subsections in part 946, section 30, specifically cited in this opinion. 39 Ill. Reg. 444, 456-62
       (emergency rule eff. Dec. 22, 2014).

                                                       -2-
       as a result of excessive nerve damage from foot surgery. Plaintiff claimed he was unable to
       perform routine daily tasks without suffering debilitating pain in his foot. Plaintiff also claimed
       his condition interfered with his ability to perform in his career, which involved hours of
       standing and moving. According to plaintiff’s petition, his physicians had attempted to treat his
       chronic pain with opiates, anticonvulsant drugs, and antidepressants. Plaintiff’s petition was
       supported by a statement from his treating physician, William B. Evans, M.D., that supported
       plaintiff’s use of medical cannabis to alleviate the symptoms of CPOP. Plaintiff also submitted
       several medical and scientific journal articles supporting the prescription of cannabis for
       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. 77 Ill Adm. Code 946.30(m) (2014). But instead
       of reviewing the advisory board’s recommendations, the Director conducted his own
       investigation and added his own evidence to the record. The circuit court stated that plaintiff
       was not given any opportunity to challenge the additional evidence considered by the Director,
       which was a denial of procedural due process.
¶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

           3
          An emergency amendment to title 77, part 946, of the Illinois Administrative Code was filed on
       August 1, 2016, and was to remain effective for 150 days. 40 Ill. Reg. 10992 (emergency rule eff. Aug.

                                                     -3-
       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 410 ILCS 130/45(i)). The Act now
       provides:
               “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 77
       Adm. Code 946.30(e))) shall not apply retroactively to the Director’s decision and that the
       amendments to section 45 of the Act, adopted on June 30, 2016, through Public Act 99-519,
       did not apply retroactively to the Director’s decision because the amendments made a
       substantive change in the law, not a procedural change.
¶ 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.”

¶ 14                                          ANALYSIS
¶ 15       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.

¶ 16                                   Subject-Matter Jurisdiction
¶ 17       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


       1, 2016). The August 1, 2016, emergency amendment to title 77, part 946, of the Illinois Administrative
       Code was later amended on September 16, 2016. 40 Ill. Reg. 13732 (emergency rule eff. Sept. 16,
       2016).

                                                      -4-
       adopt the Review Law. Plaintiff maintains that judicial review under the Act is “expressly
       addressed” in both section 45 and section 155.
¶ 18        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.” 410 ILCS
       130/155 (West 2014). There is no dispute that the decision of the Director was a final
       administrative decision of the Department of Public Health. Section 45 of the Act, titled
       “Addition of debilitating medical conditions,” explains the procedure by which to petition the
       Department for an addition of a debilitating medical condition and then states that the
       “approval or denial of any petition is a final decision of the Department, subject to judicial
       review. Jurisdiction and venue are vested in the Circuit Court.” 410 ILCS 130/45 (West 2014).
¶ 19        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 (410 ILCS 130/65(f), 185(b) (West 2014)
       (Decisions are “subject to judicial review. Jurisdiction and venue for judicial review are vested
       in the Circuit Court.”)), and sections 110 and 155 that expressly state that final administrative
       decisions of certain departments are subject to judicial review under the Review Law and its
       rules (410 ILCS 130/110, 155 (West 2014)). See 410 ILCS 130/110 (West 2014) (“All final
       administrative decisions of the Department of Agriculture are subject to judicial review under
       the [Review Law] and its rules.”).
¶ 20        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].” 735 ILCS 5/3-102 (West 2014). We find that the Act adopts
       the provisions of the Review Law by express reference when it states in section 155 that “[a]ll
       final administrative decisions *** are subject to direct judicial review under the provisions of
       the [Review Law] and the rules adopted under that Law.” (Emphasis added.) 410 ILCS
       130/155 (West 2014). A statute should be construed such that no portion of it is rendered
       meaningless. In re Marriage of Kates, 198 Ill. 2d 156, 167 (2001). Where two statutes relate to
       the same subject matter, they should be construed in pari materia, and an interpretation that
       gives meaning to both is favored. Anderson v. Chicago Board of Election Commissioners, 284
       Ill. App. 3d 832, 835-36 (1996). Section 155 would be rendered meaningless if we were to
       conclude that it somehow did not apply to all final administrative decisions by the Department
       under the Act. See County of Du Page v. Illinois Labor Relations Board, 231 Ill. 2d 593, 604
       (2008) (“Words and phrases should not be considered in isolation; rather they must be
       interpreted in light of other relevant provisions and the statute as a whole.”). Considering the
       Act as a whole, defendants’ interpretation of section 45 would render section 155 meaningless,
       thus we find that section 155 merely clarifies section 45 and that final decisions of the
       Department are subject to direct judicial review with jurisdiction and venue vesting in the
       circuit court under the Review Law. See People v. Cherry Valley Public Library District, 356
       Ill. App. 3d 893, 897 (2005) (the district’s interpretation of a certain section would make
       another entire section of the Act in question meaningless).

                                                   -5-
¶ 21        We find the cases defendants cite in support of their interpretation of the Act to be
       inapposite. In Porter v. Illinois State Board of Education, 2014 IL App (1st) 122891, ¶ 24,
       article 14 of the School Code (105 ILCS 5/art. 14 (West 2012)) did not specifically adopt the
       Review Law. Section 8.02a(i) of article 14 stated that any party dissatisfied with the agency’s
       decision had a “right to commence a civil action with respect to the issues presented in the
       impartial due process hearing” in “any court of competent jurisdiction” within 120 days. 105
       ILCS 5/14-8.02a(i) (West 2012). Accordingly, this court found that because the decision of an
       impartial hearing officer under article 14 was not expressly reviewable under the Review Law,
       a writ of certiorari was appropriate instead. Porter, 2014 IL App (1st) 122891, ¶ 24. In the
       case at bar, the Act does expressly adopt the Review Law as the means to appeal a final
       decision of the Department. 410 ILCS 130/155 (West 2014).
¶ 22        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.
¶ 23        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.” 735 ILCS 5/3-104 (West 2014). Rule 335 governs those
       administrative orders subject to direct review by the appellate court. There is nothing to
       indicate that the Department’s final decision in this case is an order directly reviewable by the
       appellate court.

¶ 24                                        Director’s Decision
¶ 25       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. 735 ILCS 5/3-110 (West
       2014). Questions of law are reviewed de novo. MacDonald v. Board of Trustees of the Park
       Ridge Police Pension Fund, 294 Ill. App. 3d 379, 382 (1998). And mixed questions of law and
       fact are reviewed under the clearly erroneous standard. AFM Messenger Service, 198 Ill. 2d at
       391-95.


                                                   -6-
¶ 26        Here, the question is whether the Director properly denied plaintiff’s petition to add CPOP
       to list of debilitating medical conditions listed in subsection (h) of section 10 of the Act. 410
       ILCS 130/45 (West 2014). This is a mixed question of law and fact. Accordingly, we will
       review the Director’s decision under the “clearly erroneous” standard, which “lies somewhere
       between a de novo and a manifest-weight-of-the-evidence standard, but provides some
       deference to the agency’s experience and expertise.” Lombard Public Facilities Corp. v.
       Department of Revenue, 378 Ill. App. 3d 921, 928 (2008).
¶ 27        At the time plaintiff submitted his petition, the Act stated that the Department “shall
       consider petitions in the manner required by Department rule.” 410 ILCS 130/45 (West 2014).
       The Department’s rules on this subject are found in part 946 of the Illinois Administrative
       Code, titled “Compassionate Use of Medical Cannabis Patient Registry.” 77 Ill. Adm. Code
       946 (2014). Section 946.30(b) stated that the advisory board “shall review petitions and
       recommend to the Department additional debilitating conditions or diseases that would benefit
       from the medical use of cannabis.” 77 Ill. Adm. Code 946.30(b) (2014). A petition was to
       include (a) the extent to which the condition or disease itself and/or the treatments cause severe
       suffering, such as chronic pain, or otherwise severely impair a person’s ability to carry on with
       activities of daily living, (b) information about why conventional medical therapies are not
       sufficient to alleviate the suffering caused by the disease or condition and its treatment, (c) the
       proposed benefits from the medical use of cannabis specific to the medical condition, (d)
       evidence from the medical community and other experts supporting the use of medical
       cannabis to alleviate suffering caused by the condition, (e) letters of support from physicians or
       other licensed health care providers knowledgeable about the condition or the disease,
       including, if feasible, a letter from a physician with whom the petitioner has a bona fide
       physician-patient relationship, and (f) any medical, testimonial, or scientific documentation.
       77 Ill. Adm. Code 946.30(g) (2014). There is no dispute that plaintiff’s petition included all of
       these elements, including a letter from his treating physician.
¶ 28        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.” 77 Ill. Adm. Code 946.30(l) (2014). Upon review of the advisory board’s
       recommendations, the Director “will render a final decision regarding the acceptance or denial
       of the proposed debilitating medical conditions or diseases.” 77 Ill. Adm. Code 946.30(m)
       (2014).
¶ 29        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 of cannabis 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.
¶ 30        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.” 410 ILCS 130/45 (West 2014). There is nothing in the

                                                    -7-
       rules that mandates “substantial evidence from adequate, well-controlled clinical trials to
       support the use of cannabis.” Rather, at the time of plaintiff’s petition, the rules indicated that
       petitions should be supported by information about chronic pain, why conventional medical
       therapies were insufficient, the proposed benefits from the medical use of cannabis, evidence
       from the medical community, and letters of support, all of which were included in plaintiff’s
       petition. The advisory board was then mandated to recommend to the Department additional
       debilitating conditions or diseases that would benefit from the medical use of cannabis. While
       there is nothing in the rules to indicate that the Director must follow the recommendations of
       the advisory board, there is also nothing in the rules indicating that the Director should be
       using a heightened standard of which plaintiff was unaware or the Director’s own research that
       was not presented at the hearing. When the agency with primary jurisdiction applies the wrong
       standard to the evidence before it, any resulting finding is invalid, and the case should be
       remanded. See Violette v. Department of Healthcare & Family Services, 388 Ill. App. 3d 1108,
       1113 (2009).

¶ 31                                      Effect of New Amendments
¶ 32        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.
¶ 33        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).
¶ 34        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.
¶ 35        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 77 Ill. Adm. Code

                                                    -8-
       946.30(e)) and Public Act 99-519 (eff. June 30, 2016) (amending 410 ILCS 130/45), that the
       amendments made a substantive change in the law and therefore did not apply retroactively.
       After the August 1, 2016, emergency amendment, section 946.30(e) states that upon review of
       accepted petitions, “the Director will consult with Department staff to analyze the clinical and
       scientific merit of the petitions. This consultation will occur before the Director renders a final
       decision regarding the acceptance or denial of the proposed debilitating medical conditions or
       diseases.” (Emphasis omitted.) 40 Ill. Reg. 10992, 11012 (emergency rule eff. Aug. 1, 2016)
       (amending 77 Ill. Adm. Code 946.30(e)). Section 45 of the Act now states that the Department
       will only accept petitions once annually for a one-month period. Pub. Act 99-519 (eff. June 30,
       2016) (adding 410 ILCS 130/45(b)). The requirements regarding the information that must be
       submitted with the petitions are substantially the same. Id. (adding 410 ILCS 130/45(d)). There
       is no longer a review from the advisory board or a recommendation to the Director. Rather,
       “[u]pon review of accepted petitions, the Director shall render a final decision regarding the
       acceptance or denial of the proposed debilitating medical conditions or diseases.” Id. (adding
       410 ILCS 130/45(f)). The advisory board now only convenes to examine debilitating
       conditions or diseases that would benefit from the medical use of cannabis, review medical and
       scientific evidence pertaining to currently approved conditions, and issue an annual report of
       its activities each year. Id. (adding 410 ILCS 130/45(j)-(k)).
¶ 36        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.” 77 Ill. Adm. Code 946.30(b) (2014). Now, after the
       amendments, the Department accepts petitions once annually and there is no hearing
       requirement. There is no standard delineated upon which the Director should ultimately
       approve or deny a proposed debilitating medical condition. These changes are substantive in
       nature as they most certainly create different rights of the petitioner than existed before.
¶ 37        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.




                                                    -9-
¶ 38                                         CONCLUSION
¶ 39       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 (410 ILCS 130/45 (West 2014)) and
       accompanying Department rule (39 Ill. Reg. 444 (emergency rule eff. Dec. 22, 2014)
       (amending 77 Ill. Adm. Code 946)).

¶ 40      Affirmed in part and reversed in part; cause remanded.




                                                  - 10 -
