                                2016 IL App (3d) 130947

                           Opinion filed April 22, 2016
____________________________________________________________________________

                                        IN THE

                          APPELLATE COURT OF ILLINOIS

                                   THIRD DISTRICT

                                         2016

MERCY CRYSTAL LAKE HOSPITAL AND             )     Appeal from the Circuit Court
MEDICAL CENTER; MERCY HARVARD               )     of the 12th Judicial Circuit,
HOSPITAL, INC.; and MERCY ALLIANCE,         )     Will County, Illinois,
INC.,                                       )
                                            )
       Plaintiffs,                          )
                                            )
       v.                                   )     Appeal Nos. 3-13-0947 and
                                            )     3-13-0960
ILLINOIS HEALTH FACILITIES AND              )     Circuit Nos. 12-MR-1824 and
SERVICE REVIEW BOARD; DALE                  )     12-MR-1840
GLASSIE, in His Official Capacity as        )
Chairman of the Illinois Health Facilities  )
and Services Review Board;                  )
THE DEPARTMENT OF PUBLIC HEALTH; )
LAMAR HASBROUCK, in His Official            )
Capacity as Acting Director; CENTEGRA       )
HEALTH SYSTEM; CENTEGRA                     )
HOSPITAL-HUNTLEY,                           )
                                            )
       Defendants-Appellees                 )
                                            )
(Advocate Health and Hospitals Corporation, )
d/b/a Advocate Good Shepherd Hospital;      )
Sherman Hospital; and Sherman Health        )
System,                                     )
                                            )
         Defendants and                     )
         Counterplaintiffs-Appellants).     )
                                            )
__________________________________          )
                                            )
MERCY CRYSTAL LAKE HOSPITAL                     )
AND MEDICAL CENTER, MERCY                       )
HARVARD HOSPITAL, INC. and MERCY                )
ALLIANCE, INC.,                                 )
                                                )
        Plaintiffs-Appellants,                  )
                                                )
        v.                                      )
                                                )
ILLINOIS HEALTH FACITLITIES AND                 )
SERVICES REVIEW BOARD, DALE                     )
GLASSIE, in His Official Capacity as            )
Chairman of the Illinois Health Facilities      )
and Services Review Board; THE                  )
DEPARTMENT OF PUBLIC HEALTH;                    )
LAMAR HASBROUCK, in His Official                )
Capacity as Acting Director of THE              )
DEPARTMENT OF PUBLIC                            )
HEALTH; CENTEGRA HEALTH                         )
SYSTEM; CENTEGRA HOSPTIAL-                      )
HUNTLEY,                                        )
                                                )
        Defendants-Appellees                    )
                                                )
(Advocate Health and Hospitals Corporation,     )
 d/b/a/ Advocate Good Shepherd Hospital;        )
Sherman Hospital; and Sherman Health            )
System,                                         )
                                                )
         Defendants-Appellants).                )
                                                )       Honorable
                                                )       Barbara Petrungaro
                                                )      Judge, Presiding.

___________________________________________________________________________

      JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.
      Justice Lytton specially concurred in the judgment, with opinion.
     Justice Schmidt specially concurred in the judgment, with opinion.
____________________________________________________________________________

                                             OPINION




                                                2
¶1          Centegra Hospital-Huntley and Centegra Health Systems (collectively “Centegra”),

     seeking to construct an acute care hospital in Huntley, Illinois, applied for a “certificate of need”

     permit from the Illinois Health Facilities and Services Review Board (“Board”). During the

     administrative process before the Board, Mercy Crystal Lake Hospital and Medical Center,

     Mercy Harvard Hospital, and Mercy Alliance (collectively “Mercy”) and Advocate Health and

     Hospitals Corporation d/b/a Advocate Good Shepard Hospital, Sherman Hospital, and Sherman

     Health Systems (collectively “Advocate”) were granted permission to intervene. Following a

     lengthy and complicated process, the Board approved Centegra’s application. Mercy and

     Advocate sought administrative review in the circuit court of Will County, which ultimately

     upheld the Board’s final administrative decision. The appeal followed.

¶2                                                  FACTS

¶3          In 1974, the Illinois legislature enacted the Illinois Health Facilities Planning Act

     (Planning Act) (Ill. Rev. Stat. 1975, ch. 111 1/2, ¶¶ 1151 et seq.), which requires regulatory

     approval before any healthcare facility may be constructed or modified in Illinois. The

     legislature asserted that the purpose of the Planning Act was to "establish a procedure designed

     to reverse the trends of increasing costs of health care resulting from unnecessary construction or

     modification of health care facilities," and thereby to "improve the financial ability of the public

     to obtain necessary health services, and to establish an orderly and comprehensive health care

     delivery system which will guarantee the availability of quality health care to the general public."

     Ill. Rev. Stat. 1975, ch. 111 1/2, ¶ 1152. 1 The Planning Act provides for the creation of the

            1
                The Planning Act was amended in 2009. In the current version of the Planning Act, the

     legislature states that the Planning Act's objectives are: "to improve the financial ability of the

     public to obtain necessary health services; to establish an orderly and comprehensive health care


                                                       3
     Board consisting of nine voting members appointed by the Governor with the advice and consent

     of the Senate. The Planning Act further provides that the Illinois Department of Public Health

     (IDPH) serves as administrative and staff support for the Board. 20 ILCS 3960/5 (West 2010).

¶4          On December 29, 2010, Centegra applied to the Board for a permit to build a 128-bed

     acute care hospital in southern McHenry County. Upon receipt of the application, the Board

     posted notice of an initial public hearing on Centergra’s application on February 16, 2011, to be

     followed by further action at the Board’s May 2011 meeting.

¶5          At the February public hearing, Centerga’s chief executive officer testified that the

     proposed facility would fill a need for additional hospital beds for the surrounding community.

     The mayor of Huntley, members of the local fire and police departments, and several other

     community members spoke in favor of Centegra’s application. Representatives of Advocate and

     others argued against Centegra’s application. All told, 134 people spoke in favor of the

     application and 85 spoke in opposition.

¶6          Following the initial public hearing, the Board staff prepared a State Agency Report

     (SAR) that assessed Centegra’s compliance with the general review criteria set out in relevant

     regulations. 77 Ill. Adm. Code § 1110 (amended at 3411. Reg. 6121 (eff. Apr. 13, 2010); 77 Ill.

     delivery system that will guarantee the availability of quality health care to the general public; to

     maintain and improve the provision of essential health care services and increase the

     accessibility of those services to the medically underserved and indigent; to assure that the

     reduction and closure of health care services or facilities is performed in an orderly and timely

     manner, and that these actions are deemed to be in the best interests of the public; and to assess

     the financial burden to patients caused by unnecessary health care construction and

     modification." 20 ILCS 3960/2 (West 2010).


                                                       4
     Adm. Code § 1120 (2010) (amended at 34 Ill. Reg. 6143, effective April 13, 2010). The SAR

     indicated that proposed project was in compliance with 17 of the 20 review criteria related to the

     establishment of a new hospital. However, the SAR also reported that the proposed project did

     not satisfy three review criteria: (1) planning area need, in that existing facilities in the relevant

     planning area were operating below capacity such that erecting a new facility would result in

     excess bed capacity in the area; (2) unnecessary duplication of service where existing facilities

     were not operating at full capacity; and (3) clinical services of other area providers would be

     adversely impacted, again due to a current underutilization of existing services.

¶7           On June 28, 2011, the Board held an open meeting to discuss Centegra’s application, at

     which additional public comment was heard, and the SAR was placed in the record. At the

     conclusion of the public hearing, the Board voted to deny the application. Eight members voted

     to deny the application, while one voted to grant the application. In accordance with regulation,

     the Board sent a written notice of intent to deny the application to Centegra. The notice

     informed Centegra’s of its right to place the matter on the Board’s agenda at a future public

     meeting. Centegra exercised that right, following which the Board requested that Centegra

     provide certain additional information prior to the meeting: (1) a detailed response to the

     negative impact statements that had been submitted by Mercy and Advocate; (2) a detailed

     explanation as to how the proposed project would address the problems identified in a

     community impact study which had been conducted by the University of Illinois in 2010; and (3)

     a detailed response to the conclusion that decreasing population projections for McHenry County

     would negate the need for the proposed project. Centegra sent a written response to the request

     on July 28, 2011. The Board referred Centegra’s response to its staff, which issued a revised

     SAR concluding that the application still failed to satisfy the three criteria.


                                                        5
¶8            On December 7, 2011, the Board conducted a public hearing at which it considered

       Centegra’s application. At that same hearing, it also considered an application filed by Mercy to

       build a hospital in the same service area. Following consideration of the record and extensive

       public comment, the Board conducted a second vote on Centegra’s application. This vote

       resulted in a tie vote – four members voting in favor of the application and four voting to deny

       the application. Since the application did not receive a majority of five votes in favor, the

       application was again denied. Centegra then requested a hearing before a hearing officer

       provided by IDPH. Both Advocate and Mercy filed petitions to intervene in the administrative

       proceedings. The hearing was scheduled to convene on March 22, 2012.

¶9            On March 16, 2012, the Board filed a request with the hearing officer seeking to return

       the matter to the Board for reconsideration. Noting an “error in the record” the Board stated that

       a consultant report which should have been made part of the record in the Mercy application had

       been erroneously included in the record of the Centegra application. The consultant report

       suggested that the Centegra application should be denied. The Board reasoned that this report

       should not have been included in the Centegra record and requested that it be granted the

       opportunity to consider the application without reference to the erroneously included report. On

       March 30, the IDPH hearing officer recommended that the Board reconsider Centegra’s

       application with the corrected record.

¶ 10          On April 4, 2012, Centegra brought a mandamus action in the circuit court of McHenry

       County, seeking an injunction to prevent the remand of the case back to the Board. Mercy and

       Advocate were named in the complaint as nominal defendants. Following written and oral

       arguments, the circuit court determined that the hearing officer had authority to remand the

       matter to the Board to consider the application on the corrected record. The court entered an


                                                        6
       order denying Centegra’s request for injunctive relief and the matter was remanded to the Board.

       Centegra filed a notice of interlocutory appeal. Subsequently, Centegra filed a motion to dismiss

       the interlocutory appeal with prejudice. The motion was unopposed. The appellate court granted

       the motion and dismissed the appeal. Centegra then moved to dismiss all counts in the McHenry

       County action. This motion was also unopposed. The court then dismissed, with prejudice, the

       challenges to the remand of the matter to the Board. 2

¶ 11          On June 5, 2012, the Board held a public meeting at which Centegra’s application was

       again considered. At this meeting, Mercy argued that if Centegra’s application was going to be

       reconsidered, then its application, which had also been denied, should likewise be reconsidered.

       Advocate argued that the Board should take the formal step of correcting its record in the

       Centegra application, but that it did not need to vote again on the application. After considering

       the positions of all the interested parties and public comment, the Board voted to accept the

       hearing officer’s recommendation to correct the record and to reconsider Centegra’s application

       at its next regularly scheduled public meeting.

¶ 12          On July 24, 2012, the Board considered Centegra’s application for a third time. In

       addition to public comment, both in favor and opposed to the project, Mercy sought to

       reintroduce the consultant report from its rejected application. Advocate argued that nothing

              2
                  In the instant appeal, appellants challenge the propriety of the remand to the Board.

       Under the doctrine of res judicata the dismissal of an action with prejudice constitutes a final

       adjudication on the merits that bars any subsequent action on that issue. Hudson v. City of

       Chicago, 228 Ill. 2d 462, 467 (2008). Advocate, which is also Sherman’s successor in interest

       herein, and Mercy were parties to the proceedings before the circuit court of McHenry County

       and are, therefore barred from raising this issue in this appeal.


                                                         7
       changed since the Board’s previous vote and urged the Board to again reject Centegra’s

       application. For its part, Centegra noted that the three noncompliant criteria involved the alleged

       underutilization of existing health care facilities in the planning area and a projected lack of

       population growth for the relevant area. Centegra challenged the population projections and

       provided demographic analysis which actually projected significant population growth for the

       planning area and a corresponding increased need for a facility in accordance with the Centegra

       project. The Board then voted 6 to 3 to approve the project. A formal written approval was

       published on September 11, 2012.

¶ 13          On August 24, 2012, Mercy filed a complaint for administrative review in the circuit

       court of Will County. 3 Advocate filed its own complaint for administrative review four days

       later. On October 5, 2012, on motion by Centegra, the two complaints were consolidated. In

       July 2013, the court sua sponte determined that the Board’s final order did not contain findings

       of fact or conclusions of law, and thus the court could not rule on the complaints for

       administrative review. The circuit court, citing Medina Nursing Center, Inc. v. Health Facilities

       & Services Review Board, 2013 IL App (4th) 120554, ¶ 27, remanded the matter to the Board

       “for further explanation.”

¶ 14          On September 24, 2013, the Board held a fourth public hearing on the Centegra

       application. Following public comment, and arguments in favor and in opposition, the Board

       voted, by a vote of 7 to 1, to approve Centegra’s application. The circuit court confirmed the

       Board’s decision on November 8, 2013, finding that the Board had adequately articulated

              3
                  The meeting at which the Board approved Centegra’s application was held in

       Bolingbook in Will County, thus venue was proper in Will County. 735 ILCS 5/3-104 (West

       2012); Slepika v. Illinois Department of Public Health, 2014 IL 116927, ¶ 16.


                                                         8
       findings of fact and conclusions of law which provided a sufficient explanation for its decision.

       The court also found that the record supported the Board’s decision. Advocate and Mercy then

       filed their respective notices of appeal. This court consolidated the two appeals.

¶ 15                                            ANALYSIS

¶ 16                                       I. Standard of Review

¶ 17          On appeal, this court reviews the Board’s final decision, not the decision of the circuit

       court. MJ Ontario, Inc. v. Daley, 371 Ill. App. 3d 140, 144 (2007). On review, an administrative

       agency’s factual findings are considered to be prima facie true and correct and the reviewing

       court will not disturb those findings unless they are contrary to the manifest weight of the

       evidence. Cathedral Rock of Granite City, Inc. v. Illinois Health Facilities Planning Board, 308

       Ill. App. 3d. 529, 542 (1999). While administrative factual findings are reviewed under a

       manifest weight standard of review, the ultimate decision of the administrative agency presents a

       mixed question of law and fact, requiring a reviewing court to examine “the legal effect of a

       given set of facts.” City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 205

       (1998). The clearly erroneous standard of review is significantly deferential, and, so long as the

       record contains evidence supporting the agency’s decision, it should be affirmed. Abrahamson v.

       Illinois Department of Professional Regulation, 153 Ill. 2d 76, 88 (1992); Provena Health v.

       Illinois Health Facilities Planning Board, 382 Ill. App. 3d 34, 38-39 (2008).

¶ 18                              II. Sufficiency of the Board’s Written Decision

¶ 19          On appeal, Advocate first maintains that the Board’s written decision following remand

       from the circuit court of Will County was legally deficient. Specifically, it maintains that the

       Board failed to articulate with specificity its reasons for approving Centegra’s application.

       Advocate’s argument relies upon the holding in Medina Nursing Center, wherein the court


                                                        9
       remanded a matter to the Board for “a reasoned opinion so as to make possible a meaningful

       judicial review.” Medina Nursing Center, 2013 IL App (4th) 120554, ¶ 27. In Medina, the court

       found the Board’s decision, which stated only that the Board had " '[c]onsidered the findings

       contained in the [SAR], the application material, and any testimony made before the [Board]' " to

       be insufficient for meaningful judicial review. Id., at ¶ 17. Advocate argues that Medina

       Nursing Center established a standard or review for Board decisions which has not been met in

       the instant case. We disagree.

¶ 20          It is well settled that a reviewing court’s role in an “administrative review action is to

       determine whether the evidence in the record supports” the agency’s decision. Marconi v.

       Chicago Heights Police Pension Board, 225 Ill. 2d 497, 540 (2006). Courts generally do not

       inquire into the level of detail of the agency’s decision. Kimball Dawson, LLC v. City of

       Chicago Department of Zoning, 369 Ill. App. 3d 780, 787 (2006). Where the testimony and

       documentary evidence is preserved in the record, a reviewing court has a sufficient factual basis

       upon which to determine whether an agency’s decision is manifestly erroneous without the need

       for the agency to specify any factual basis for its decision. Jagielnik v. Board of Trustees of the

       Police Pension Fund of the Village of Mundelein, 271 Ill. App. 3d 869, 875 (1995) ("[u]pon

       administrative review, the function of both the trial and appellate courts is limited to determining

       whether the findings and conclusions of the administrative agency are against the manifest

       weight of the evidence" and "there need only be some competent evidence in the record to

       support its findings"). Moreover, our courts have held that the Board is not required to make

       specific written findings when it approves an application. Charter Medical of Cook County, Inc.

       v. HCA Health Services of Midwest, Inc., 185 Ill. App. 3d 983, 991 (1989); Access Center for

       Health, Ltd. v. Health Facilities Planning Board, 283 Ill. App. 3d 227, 237 (1996) (Board


                                                        10
       required to specify findings and conclusions only when it denies an application). To the extent

       that the court in Medina Nursing Center required the Board to articulate specific reasons for its

       decision on an application, we decline to follow the holding in that case. Instead, we turn to the

       issue of whether there is a sufficient factual basis in the record upon which to determine whether

       the Board’s approval of Centegra’s application was manifestly erroneous.

¶ 21                                 III. Review of the Board’s Decision

¶ 22          The appellants argue that the Board’s decision was clearly erroneous, which requires a

       showing that the opposite conclusion, i.e., that Centegra’s application should have been denied,

       was clearly apparent. Provena Health, 382 Ill. App. 3d at 47. Specifically, they argue that the

       SAR finding that the application failed 3 of the 23 review criteria conclusively established that

       the application should have been denied. We disagree. Under the Board’s rules and governing

       case law, an application does not have to comply with all review criteria. Id. at 40 (Board

       approval of application with seven negative criteria not clearly erroneous); Cathedral Rock, 308

       Ill. App. 3d at 544 (approval with three negative criteria not clearly erroneous); Access Center

       for Health, 283 Ill. App. 3d at 236 (approval with three negative criteria not clearly erroneous).

       Moreover, our courts have also consistently rejected the argument that any criteria are more

       pertinent or important than any others. Provena Health, 382 Ill. App. 3d at 40. Therefore,

       neither the number of negative criteria nor the relative importance of the particular negative

       criteria have any bearing on whether Board approval of an application was clearly erroneous.

¶ 23          We now turn to a discussion of whether the Board’s decision was clearly erroneous. The

       record contains substantial evidence supporting the Board’s decision to grant the application. In

       response to the circuit court’s remand, the Board itemized the review criteria and found that

       Centegra had satisfied a majority of the criteria. Based upon population projections that the


                                                       11
       Board found credible, it concluded that Centegra’s project was necessary and would not lead to

       needless duplication or maldistribution of health care services. Moreover, the Board concluded

       that the noncompliant criteria “did not outweigh the positive aspects of the project.”

¶ 24          The Board’s findings of fact and conclusions of law stated the following: (1) Centegra

       met all the financial and economic criteria necessary to establish that it had sufficient financial

       resources to complete the project; (2) the need for medical, surgical, and intensive care beds was

       increasing in the planning area; (3) the application established that the relevant planning area was

       designated as a medically underserved population area and health manpower shortage areas; (4)

       the application adequately provided for cost containment, safety net and charitable care

       considerations; and (5) granting the application would not lead to an unnecessary duplication of

       services as the additional 128 beds proposed would “improve access to hospital services and

       create a more comprehensive and orderly health care delivery system in [the] planning area.”

       The appellants challenge each of these findings and conclusions. However, it is well established

       that a reviewing court will not substitute its judgment for that of the Board. Cathedral Rock, 308

       Ill. App. 3d at 545. Rather, we will defer to the Board’s discretion, expertise and judgment in

       weighing and analyzing evidence regarding all statutory and regulatory criteria. Charter

       Medical of Cook County, 185 Ill. App. 3d at 988-89. Reviewing the record, we cannot say that

       there is no evidence contained therein to support the Board’s findings and conclusions.

¶ 25                                   IV. Arbitrary or Capricious

¶ 26          Appellants next maintain that the procedural history of Board’s ruling on the Centegra

       application clearly demonstrates that its decision was both arbitrary and capricious and should be

       overturned on that basis. We disagree. Our courts have consistently ruled that an agency’s

       actions will be considered arbitrary and capricious if the agency: (1) relied upon factors that the


                                                        12
       legislature did not intend to be considered; (2) entirely failed to consider an important aspect of

       the application; or (3) offered an explanation for its decision that either runs counter to the

       evidence before it or is wholly implausible. Greer v. Illinois Housing Development Authority,

       122 Ill. 2d 462, 505-06 (1988); Cathedral Rock, 308 Ill. App. 3d at 543. In reviewing an agency

       decision for arbitrary or capricious analysis, we will not substitute our own reasoning for that of

       the agency. Greer, 122 Ill. 2d at 506.

¶ 27          Appellants maintain that the Board’s rejection of the SAR recommendations establishes

       that its ultimate approval of Centegra’s application was arbitrary and capricious. We must reject

       this claim. The Board is the ultimate factfinder and decision maker (Highland Park

       Convalescent Center, Inc. v. Health Facilities Planning Board, 217 Ill. App. 3d 1088, 1092

       (1991)), and is required to consider staff findings, it is not bound to accept any findings or

       recommendations of its staff. Cathedral Rock, 308 Ill. App. 3d at 543. The mere fact that the

       Board did not accept and adopt the SAR in its entirety does not establish that the Board’s

       ultimate decision was arbitrary and capricious.

¶ 28          Appellants also maintain that the Board’s ultimate approval of Centegra’s application

       was arbitrary and capricious since the evidence before the Board when it approved the

       application was the same as when it denied the application almost two years earlier. The record

       does not support this argument since there clearly was additional testimony presented at the two

       public hearings that occurred between the first Board vote and the last. Thus, there was

       additional evidence for the Board to consider when it revoted on the application. Moreover, as

       we have previously observed, the Board is the ultimate factfinder and we are aware of no

       authority that prevents an agency from reconsidering a previous decision. Castaneda v. Illinois

       Human Rights Comm’n, 132 Ill. 2d 304, 308 (1989) (agency allowed to fully deliberate prior to


                                                         13
       issuing final and appealable decision). Thus, the mere fact that the Board “changed its mind”

       during the three years in which it was considering the Centegra application does not, a priori,

       establish that the Board’s ultimate decision either ran counter to the evidence before it or was

       wholly implausible.

¶ 29          Appellants further maintain that certain “procedural irregularities” in the application

       process establish that the Board’s approval of Centegra’s application was arbitrary and

       capricious. Specifically, they claim that a letter sent by Centegra to the Board on September 10,

       2013, was an improper ex parte communication which gave rise to an inference that the Board

       was acting in an imprudent and potentially improper manner. We find this claim to be without

       merit. An ex parte communication is one that occurs outside the presence or knowledge of one

       of the parties, and thus creates an inference of impropriety. In re Maher, 314 Ill. App. 3d 1088,

       1097-98 (2000). Here, the letter at issue was sent to the Board and all the parties. Therefore, no

       improper ex parte communication occurred. Moreover, there is nothing in the record to indicate

       that the September 10, 2013, letter, which contained no new information, had any impact on the

       ultimate decision. See Kamelgard v. American College of Surgeons, 385 Ill. App. 3d 675, 683

       (2008) (an ex parte communication is improper where there is evidence to believe that decision

       was based on facts outside the record).

¶ 30          The appellants also maintain the Board engaged in prejudicial procedural irregularities

       when it did not allow written comments prior to the July 2012 vote. Again, the record does not

       support their argument. The Board not only allowed public comment at the July 2012 hearing, it

       also allowed any members of the public to submit written comments at various times prior to that

       hearing. The Board’s procedural limitations on submission of evidence were objectively




                                                       14
       reasonable and cannot be seen as arbitrary or capricious. Farmers State Bank of McNabb v.

       Department of Employment Security, 216 Ill. App. 3d 633, 639 (1991).

¶ 31         Similarly, the appellants’ argument that the Board’s approval of the application was

       arbitrary and capricious due to alleged Open Meetings Act (5 ILCS 120/1 et seq. (West 2010))

       violations is without merit. The appellants identify no facts showing a violation of the Open

       Meetings Act, and we can find none in the record. The record, to the contrary, established that

       the Board complied with the Open Meetings Act by voting in public before taking the final

       action at issue herein. 5 ILCS 120/2(e) (West 2010) ("[n]o final action may be taken at a closed

       meeting" and "[f]inal action shall be preceded by a public recital of the nature of the matter being

       considered and other information that will inform the public of the business being conducted").

¶ 32                                          V. Due Process

¶ 33          Appellants lastly maintain that the Board’s approval of Centegra’s application deprived

       them of due process. The starting point in any due process analysis is a determination of whether

       a life, liberty, or property interest exists that have been interfered with by State action.

       Cathedral Rock, 308 Ill. App. 3d at 539. Here, appellants claim that the Board deprived them of

       due process by failing to follow its own procedures regarding written comments, engaging in ex

       parte communications, failing to properly consider the weight of certain evidence, and violating

       the Open Meetings Act. As we found each of these contentions to be not supported by the

       record, the claim that the Board committed due process violations cannot be supported.

       Moreover, the mere fact that the Board approved a competitor’s application, does not establish

       that a protectable right has been violated. Id. Therefore, we find no due process violation.

¶ 34           In closing, we offer a few words on the special concurrence. Justice Schmidt's offering

       brings to mind a timeless observation made in 1869 by American lawyer and poet John Godfrey


                                                         15
       Sax, to wit: "Laws, like sausages, cease to inspire respect in proportion as we know how they are

       made." (Internal quotation marks omitted.) An Impeachment Trial, The Chronicle, Mar. 27,

       1869, at 4. By taking the public on a tour of the sausage factory in Springfield, Justice Schmidt

       risks triggering a collective case of indigestion. On the other hand, Justice Schmidt may be this

       generation's Upton Sinclair. A little dyspepsia might be a small price to pay for some much

       needed (and long overdue) transparancy. After all, as Justice Brandeis so aptly put it,

       "[p]ublicity is justly commended as a remedy for social and industrial diseases. Sunlight is said

       to be the best of disinfectants; electric light the most efficient policeman." Louis D. Brandeis,

       Other People's Money and How the Bankers Use It 93 (1914). We can only hope that the light

       that Justice Schmidt shines on the factory floor in Springfield leads to the production of more

       sanitary and wholesome sausages in the future. For now, to paraphrase Captain Renault from

       Casablanca, we will merely note that we are shocked, shocked to find that political

       considerations are influencing the legislative process in Illinois.

¶ 35                                         CONCLUSION

¶ 36          For the foregoing reasons, the judgment of the circuit court of Will County confirming

       the final agency decision of the Board is affirmed.

¶ 37          Affirmed.

¶ 38          JUSTICE LYTTON, specially concurring.

¶ 39          I concur in the result.

¶ 40          JUSTICE SCHMIDT, specially concurring.

¶ 41          I concur in the majority’s determination that the Board’s approval of Centegra’s

       application to construct an acute care hospital was not clearly erroneous, arbitrary and

       capricious, or a violation of due process. I write separately in light of paragraph 3 (supra ¶ 3) of

                                                        16
       the majority offering. No thinking person can accept the legislature’s stated purpose, at least not

       after 1986.

¶ 42          The majority notes that the Illinois legislature enacted the Planning Act in 1974 in an

       effort to reverse the trend of increasing healthcare costs resulting from unnecessary construction

       or modification of healthcare facilities. 20 ILCS 3960/1 et seq. (West 2010). Let’s assume that

       this was true at the time. That same year, the federal government developed what it termed the

       National Health Planning and Resources Development Act of 1974 (National Health Act), which

       required all states to adopt “Certificate of Need” (CON) programs in order to control both the

       growth of healthcare facilities and the increase/inflation of healthcare costs around the nation.

       Pub. L. No. 93-641, §§ 1, 3, 88 Stat. 2225, 2225, 2227 (1974). However, over the next several

       years, America’s aggregate healthcare costs continued to rise, reaching $332 billion by 1982.

       Des Moines Register and Tribune, 10A (July 17, 1983). Realizing that its efforts had been a

       complete failure, Congress repealed the National Health Act in 1986. Drug Export Amendments

       Act of 1986, Pub. L. No. 99-660, § 701(a), 100 Stat. 3743, 3799 (1986). Despite the loss of

       federal support and proof that CON programs were not working, Illinois chose to retain the

       Planning Act.

¶ 43          Fast-forward to 2004, when the FTC and the DOJ released a joint report concluding that

       the anticompetitive risks associated with CON programs have thwarted any of their potential

       economic benefits. Department of Justice & Federal Trade Commission, Improving Health

       Care: A Dose of Competition, 22 (July 2004), available at

       http://www.justice.gov/sites/default/files/atr/legacy/2006/04/27/204694.pdf. In the course of

       their research, the FTC and the DOJ found that CON programs, such as the Planning Act,

       actually contribute to rising prices by inhibiting competitive markets that would be able to


                                                        17
       control the costs of healthcare and guarantee quality and access to treatment and services. Id. at

       4. In other words, the federal government came to the same conclusion that college professors

       across the country have been teaching freshmen in Economics 101 for years: a competitive

       market generally results in lower prices. As a result of their findings, the FTC and the DOJ

       recommended that states eliminate their CON programs. Id. 1, 22. Illinois, again, chose not to

       do so. Importantly, none of the studies mention the corruption costs built into the system. When

       people in the healthcare system and contractors are either donating to or buying politicians

       and/or Board members, it would be naïve to believe that those costs are not passed on to the

       consumer.

¶ 44          If the recommendation of the federal government and clear evidence of a failing program

       were not enough to convince the General Assembly that the Planning Act is counter-productive,

       consider the case of former Board member, Stuart Levine. Levine pled guilty in federal court to

       using his position on the Board to squeeze hospitals for kickbacks and campaign contributions

       for his friends. Levine managed to avoid an extensive prison sentence, but only after agreeing to

       testify against Tony Rezko—the wealthy Chicago businessman, who Levine testified controlled

       five of the nine Board members at the time. See United States v. Rezko, 776 F. Supp. 2d 651,

       665-66 (N.D. Ill. 2011).

¶ 45          According to Levine, it was commonplace for the Board to give the go-ahead on

       construction only after either the hospital seeking application approval, or the contractor who

       sought to build the new hospital had bribed Rezko and made a political contribution to Rod

       Blagojevich’s campaign. Former Board chairman, Thomas Beck, backed up Levine’s claims.

       Beck testified under immunity from prosecution that with Rezko’s support and a $1,000 donation

       to Blagojevich’s campaign fund, he was appointed chairman of the Board. Two other Board


                                                       18
       members donated $25,000 each to Blogojevich’s campaign fund just 18 days before they were

       appointed to their positions on the Board. And these are just the people who got caught.

¶ 46             The application approval at the heart of the federal investigation? Mercy Crystal Lake.

       Levine testified at Rezko’s trial that the Board approved Mercy’s application to build a hospital

       in Crystal Lake only after Mercy’s contractor, Joseph Kiferbaum, agreed to pay Levine and

       Rezko a kickback of approximately $1 million or more. Id. at 665. Of course, after the scandal

       erupted, the Board withdrew Mercy’s application approval, paving the way for the case at hand.

¶ 47             Following the Rezko scandal, the Illinois legislature, at the expense of Illinois taxpayers,

       commissioned the Lewin Group to conduct a comprehensive evaluation of the Planning Act.

       The Lewin Group, An Evaluation of Illinois’ Certificate of Need Program (Feb. 15, 2007),

       available at http:// ilga.gov/commission/cgfa2006/Upload/LewinGroupEvalCertOfNeed.pdf. Not

       so surprisingly, the Lewin Group determined that CON programs, in general, rarely reduce

       healthcare costs, and in some cases, actually increase prices by facilitating anticompetitive

       barriers to market entry. Id. at 16-17. Put another way, restricting new construction reduces

       price competition between facilities and actually keeps prices high. Without even considering

       the cost of political corruption, the Lewin Group concluded that it was “unrealistic” for Illinois to

       expect the Planning Act to reduce healthcare costs. The Lewin study explained that a totally free

       market could put inner city and rural “safety-net” hospitals at risk, but also found no evidence of

       greater inner city hospital failures in nonCON states as opposed to CON states. Lewin found no

       support for the argument that CONs provide a protective effect for safety-net hospitals’ financial

       status.

¶ 48             Yet again, the Illinois General Assembly chose not to kill the goose that was laying

       golden eggs. To the contrary, the legislature doubled-down and expanded the definition of


                                                          19
       “health care services” to include even more healthcare facilities. 20 ILCS 3960/3 (West Supp.

       2009). This, of course, creates a whole new group of individuals and businesses who feel

       compelled to “donate” to secure favorable treatment by the Board.

¶ 49          Today, the Planning Act is still in effect, but with a slightly modified, but equally

       disingenuous stated purpose. 20 ILCS 3960/2 (West 2014). 4 This language would be funny

       were it not for evidence of the shameless political corruption in this state. The stated purpose of

       the Planning Act flies in the face of not only the FTC/DOJ study (supra ¶ 41), but also the study

       commissioned by the General Assembly at the expense of the taxpayers. Regardless, the ability

       of one to build or expand a healthcare facility in Illinois is still in the hands of nine individuals—

       Board members who have been appointed by the Governor and approved by the Senate. 20

       ILCS 3960/4 (West 2014).

¶ 50          In essence and in fact, this legislation is nothing more than an additional corruption tax

       added to the cost of healthcare in Illinois. This legislation is clearly anticonsumer, but

       propolitician. Ironically, eradicating the Planning Act would fulfill the stated goal of the

              4
                  The current objectives of the Planning Act are: “to improve the financial ability of the

       public to obtain necessary health services; to establish an orderly and comprehensive health care

       delivery system that will guarantee the availability of quality health care to the general public; to

       maintain and improve the provision of essential health care services and increase the

       accessibility of those services to the medically underserved and indigent; to assure that the

       reduction and closure of health care services or facilities is performed in an orderly and timely

       manner, and that these actions are deemed to be in the best interests of the public; and to assess

       the financial burden to patients caused by unnecessary health care construction and

       modification.” 20 ILCS 3960/2 (West 2014).


                                                         20
       Planning Act. Yet, as the cost of healthcare continues to rise and Illinois remains the poster-

       child for political corruption, the General Assembly repeatedly refuses to do so. This legislation

       assures that money keeps pouring in to Illinois politicians not only from those wishing to build

       new hospitals, but also from incumbent hospitals wishing to avoid any competition. Each side

       wants their friends on the Board. This, of course, leads each side to “donate” to Illinois

       governors and senators. This is in addition to the history of bribes to Board members.

¶ 51          By restricting the output of healthcare services and diminishing incentives to pursue

       innovation, the Planning Act imposes significant and unnecessary costs on healthcare consumers,

       i.e., the people of Illinois. As a result of this legislation, Centegra has been forced to jump

       through years of pointless hoops and incur untold unnecessary costs in order to build its hospital.

       Guess who ultimately incurs those costs. This is unacceptable. For these reasons, I specially

       concur in the judgment.




                                                        21
