                            ILLINOIS OFFICIAL REPORTS
                                          Appellate Court



                           Rodrigues v. Quinn, 2013 IL App (1st) 121196




Appellate Court             ROCHELLE J. RODRIGUES, Plaintiff-Appellant, v. PATRICK QUINN,
Caption                     Governor of the State of Illinois; LISA MADIGAN, Attorney General of
                            the State of Illinois; THE DEPARTMENT OF FINANCIAL AND
                            PROFESSIONAL REGULATION; BRENT E. ADAMS, Secretary of the
                            Department of Financial and Professional Regulation; JAY STEWART,
                            Director of the Division of Professional Regulation of the Department of
                            Financial and Professional Regulation; THE BOARD OF NURSING; and
                            JULIO SANTIAGO, Chairperson of the Board of Nursing, Defendants-
                            Appellees.


District & No.              First District, First Division
                            Docket No. 1-12-1196


Filed                       May 13, 2013


Held                        The appellate court upheld the denial of plaintiff’s request for an
(Note: This syllabus        injunction against enforcement of the provision of the Illinois Department
constitutes no part of      of Professional Regulation Law revoking by operation of law the license
the opinion of the court    of a health care worker who has been convicted of a criminal act
but has been prepared       requiring registration under the Sex Offender Registration Act,
by the Reporter of          notwithstanding the fact that her license as a registered nurse had been
Decisions for the           restored by the Department of Financial and Professional Regulation after
convenience of the          it had been suspended following her conviction for aggravated criminal
reader.)
                            sexual assault, since the statute applied to plaintiff is rationally related to
                            the public interest in protecting the public from potentially dangerous
                            health care workers and maintaining the integrity of health care
                            professionals, and it is not arbitrary or discriminatory.


Decision Under              Appeal from the Circuit Court of Cook County, No. 11-CH-30142; the
Review                      Hon. Franklin U. Valderrama, Judge, presiding.
Judgment                   Affirmed and remanded.


Counsel on                 Broida & Nichele, Ltd., of Naperville (Ronald J. Broida and Joseph K.
Appeal                     Nichele, of counsel), for appellant.

                           Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
                           Solicitor General, and Nadine Wichern, Assistant Attorney General, of
                           counsel), for appellees.


Panel                      PRESIDING JUSTICE HOFFMAN delivered the judgment of the court,
                           with opinion.
                           Justices Rochford and Delort concurred in the judgment and opinion.



                                             OPINION

¶1          At issue in this appeal is the constitutionality of section 2105-165 of the Illinois
        Department of Professional Regulation Law (20 ILCS 2105/2105-165 (West 2012))
        (hereinafter referred to as the Act) as applied to the health-care-worker plaintiff. Subsection
        (a) of the Act provides that the license of a health care worker as defined in the Health Care
        Worker Self-Referral Act (225 ILCS 47/1 et seq. (West 2012)) who: “(1) has been convicted
        of a criminal act that requires registration under the Sex Offender Registration Act; (2) has
        been convicted of a criminal battery against any patient in the course of patient care or
        treatment, including any offense based on sexual conduct or sexual penetration; (3) has been
        convicted of a forcible felony; or (4) is required as a part of a criminal sentence to register
        under the Sex Offender Registration Act *** shall by operation of law be permanently
        revoked without a hearing.” 20 ILCS 2105/2105-165(a) (West 2012). The Act became
        effective on August 20, 2011.
¶2          In 1993, the plaintiff, Rochelle J. Rodrigues, was licensed as a registered nurse pursuant
        to the Nurse Practice Act (now 225 ILCS 65/50-1 et seq. (West 2010)), and she practiced
        nursing until 2001, when she was convicted of aggravated criminal sexual assault for having
        a relationship with a 17-year-old neighbor. She was sentenced to five years’ imprisonment
        in 2002 and required to register as a sex offender. As a result of this conviction, the
        Department of Financial and Professional Regulation (the Department) suspended her
        nursing license indefinitely and for a period of at least five years. In November 2008,
        Rodrigues petitioned the Department to restore her nursing license, which it did following
        an investigation and hearing in 2009. As part of the consent order, Rodrigues was required
        to retake the National Council Licensure Examination, which she did and passed. She
        returned to work as a nurse in July 2011.


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¶3        On August 4, 2011, Rodrigues was notified that her license was being revoked pursuant
     to the Act. On August 25, 2011, she filed a complaint against the defendants: the
     Department, Brent E. Adams as Secretary of the Department, Jay Stewart as the Director of
     the Department’s Division of Professional Regulation, the Illinois Board of Nursing (Board),
     Julio Santiago as the chairperson of the Board, Patrick Quinn as Governor of the State of
     Illinois, and Lisa Madigan as Attorney General for the State of Illinois. Rodrigues sought a
     judicial declaration that the Act can be applied only prospectively as the result of convictions
     that occur after its effective date and injunctive relief preventing the Department from
     revoking her nursing license as a consequence of her conviction which predated the Act’s
     effective date. On September 7, 2011, Rodrigues filed an emergency petition for a temporary
     restraining order and preliminary injunction against the defendants after receiving an order
     from the Department compelling her to notify her employer that she was no longer a licensed
     registered nurse. On September 8, the circuit court temporarily restrained the defendants
     from enforcing the Act against Rodrigues until a hearing on her petition for a preliminary
     injunction could be held. On April 13, 2012, the circuit court denied Rodrigues’s petition for
     a preliminary injunction, finding that she failed to show that she was likely to succeed on the
     merits of her constitutional claims. Rodrigues timely filed this interlocutory appeal, arguing
     that the circuit court erred in denying her request for a preliminary injunction.
¶4        To be entitled to preliminary injunctive relief, a plaintiff must demonstrate that she (1)
     possesses a protectable right; (2) will suffer irreparable harm without the protection of an
     injunction; (3) has no adequate remedy at law; and (4) is likely to be successful on the merits
     of her action. Travelport, LP v. American Airlines, Inc., 2011 IL App (1st) 111761, ¶ 33.
     While the plaintiff is not required to make out a case which would entitle her to judgment
     at trial, she “must establish a ‘fair question’ as to each of the elements.” Id. Generally, we
     review a trial court’s denial of a preliminary injunction using the abuse-of-discretion
     standard. World Painting Co. v. Costigan, 2012 IL App (4th) 110869, ¶ 12. However, the
     standard of review is de novo on the issue of whether there is a “fair question” concerning
     the constitutionality of a statute, which is the issue in this case. Id.
¶5        Rodrigues contends that the Act was not intended to apply retroactively. As such, she
     argues that the retroactive application of the Act is unconstitutional because it: (1) violates
     the constitutional prohibition against ex post facto laws; (2) violates the constitutional
     protection against double jeopardy; (3) infringes on her constitutional right to procedural due
     process; (4) violates her right to substantive due process because it is not rationally related
     to the government’s interest in protecting the public; and (5) violates her constitutional right
     to equal protection under the law. We rejected similar claims that the Act violated the
     proscription against ex post facto laws, the constitutional protection against double jeopardy,
     and the right to procedural due process in Consiglio v. Department of Financial &
     Professional Regulation, 2013 IL App (1st) 121142. We further determined that the Act was
     neither retroactive nor punitive in its nature and application. Id. ¶¶ 16, 30. We find no reason
     in this case to deviate from our previous holding.
¶6        In addition to the arguments that we addressed in Consiglio, Rodrigues argues that the
     Act violates her substantive due process rights in that it is not rationally related to the
     protection of the public where the Department previously determined that she was not a

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     threat and reissued her license. She argues the Act, even if its goal of protecting the public
     is legitimate, is not a rational way to achieve the goal. We disagree.
¶7        While individuals enjoy certain property rights in the continued practice of their
     professions and those rights are entitled to due process protection, this fact does not mean
     that those rights cannot be affected by the state legislature. Gersch v. Department of
     Professional Regulation, 308 Ill. App. 3d 649, 656 (1999). The “right to pursue a profession
     is not a fundamental right for due process purposes.” Id. Where, as here, no fundamental
     constitutional right is involved, we review the statute using a rational basis analysis. Russell
     v. Department of Natural Resources, 183 Ill. 2d 434, 446 (1998). “Under this test, the statute
     must bear a reasonable relationship to the public interest intended to be protected, and the
     means adopted must be a reasonable method of accomplishing the desired objective.” Id. at
     447. “Whether a [statute] is wise or whether it is the best means to achieve the desired result
     are matters left to the legislature and not the courts.” Gersch, 308 Ill. App. 3d at 656. “As
     long as there is a conceivable basis for finding the statute is rationally related to a legitimate
     state interest, the law must be upheld.” Id.
¶8        The legislature has the power to establish standards for licensing practitioners in order
     to protect the public health and safety and other valid interests. Id. The deprivation of an
     individual’s right to pursue a particular profession is not arbitrary or unreasonable if that
     deprivation is based upon the individual’s failure to comply with conditions or requirements
     imposed by the legislature for the protection of society. Id. Here, the legislature intended to
     deny health care licenses to anyone with a conviction described in the Act, including one
     which requires sex offender registry. This statute is rationally related to the public interest
     in that it seeks to protect the public from potentially dangerous health care workers and to
     maintain the integrity of the health care professions (see Consiglio, 2013 IL App (1st)
     121142, ¶ 40); it is neither arbitrary nor discriminatory. While Rodrigues argues that the
     Department had previously determined that she did not pose a threat to the public, the
     legislature has determined otherwise and now prohibits her from continuing in her
     profession. Panzella v. River Trails School District 26, 313 Ill. App. 3d 527, 534 (2000)
     (regarding a statute’s amendment affecting school code, “the legislature has an ongoing right
     to amend a statute”); Gersch, 308 Ill. App. 3d at 655-56 (the legislature may regulate a
     profession if the regulation has a rational basis to a legitimate legislative purpose that is
     neither arbitrary nor discriminatory). The same due process argument that Rodrigues raises
     was rejected in the case of Bhalerao v. Department of Financial & Professional Regulations,
     because a rational basis for the Act was “readily discernable” as the government has a strong
     interest in regulating health care workers and protecting the public from those health care
     workers with convictions triggered by the Act. See Bhalerao v. Illinois Department of
     Financial & Professional Regulations, 834 F. Supp. 2d 775, 784 (N.D. Ill. 2011).
¶9        We further reject Rodrigues’s reliance on Garrido v. Cook County Sheriff’s Merit Board,
     349 Ill. App. 3d 68 (2004), for her contention that the Act violates her right to due process.
     Garrido is easily distinguishable. In Garrido, the employee tested positive for cocaine and
     was terminated after an evidentiary hearing, pursuant to a zero-tolerance drug policy. Id. at
     79. However, the evidence established that the employee ingested a tea while in a foreign
     country, unaware that it contained trace amounts of cocaine. Id. at 78. Here, Rodrigues had

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       the opportunity to present evidence of her innocence of the sexual assault offense prior to her
       conviction. Unlike in Garrido, where the court held that there was no rational basis for the
       zero-tolerance termination for an innocent consumption of cocaine, the basis for Rodrigues’s
       license revocation was her conviction of an offense requiring scienter. We therefore do not
       find the reasoning in Garrido applicable here.
¶ 10        We likewise reject Rodrigues’s claim that the Act violates the equal protection clause of
       the United States and Illinois Constitutions. U.S. Const., amend. XIV, § 1; Ill. Const. 1970,
       art. I, § 2. We analyze the state equal protection clause in lockstep with the federal clause.
       See Arvia v. Madigan, 209 Ill. 2d 520, 536-37 (2004). Where, as here, the statute in question
       involves a property right and not a fundamental right, we review the statute under the rational
       basis test. Id. at 537. Under the rational basis test, the legislation is upheld if the
       classification it creates is rationally related to a legitimate state interest. Id. We have already
       determined that the Act is rationally related to a legitimate state purpose of protecting the
       public from health care workers with certain convictions and maintaining the integrity of the
       health care professions; thus, the classification of that the Act creates does not violate the
       equal protection clause.
¶ 11        Based on the foregoing reasons, the circuit court did not err in denying Rodrigues’s
       petition for a preliminary injunction. We therefore affirm the judgment of the circuit court
       of Cook County and remand the cause for further proceedings consistent with the opinions
       explained herein.

¶ 12       Affirmed and remanded.




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