dissenting:
The majority reverses the appellate court, holding that plaintiffs’ challenge to the administrative rule requiring pharmacies to dispense prescription contraceptives (68 Ill. Adm. Code §1330.91(j) (2005)) is ripe for judicial review. The majority also holds that, even though plaintiffs undisputedly failed to seek a variance excusing their compliance with the rule, this did not constitute a failure to exhaust administrative remedies. Alternatively, the majority concludes that even if an exhaustion analysis applies, plaintiffs are exempt from the requirement under various exceptions.
I disagree with the majority regarding the exhaustion issue, which is dispositive. Plaintiffs’ failure to seek a variance from the Director5 pursuant to section 11 of the Pharmacy Practice Act of 1987 (225 ILCS 85/11 (West 2004))6 constituted a failure to exhaust administrative remedies, and plaintiffs were not exempt from the exhaustion requirement. Plaintiffs’ complaint was properly dismissed by the circuit court. I write separately to explain why the exceptions to the exhaustion doctrine asserted by the majority do not apply.
“Generally, a party may not seek judicial relief from an administrative action unless the party has exhausted all available administrative remedies.” Arvia v. Madigan, 209 Ill. 2d 520, 531 (2004). An exception to this doctrine provides that a plaintiff who attacks a statute or rule as unconstitutional on its face need not exhaust administrative remedies. Arvia, 209 Ill. 2d at 532. In the case at bar, the majority concludes that plaintiffs’ claim is a facial rather than an as-applied challenge, and holds that the exception for facial challenges therefore applies. Citing Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 306 (2008), the majority explains the difference between facial and as-applied challenges in terms of the differing results if the plaintiff prevails. “The difference between an as-applied and a facial challenge is that if a plaintiff prevails in an as-applied claim, he may enjoin the objectionable enforcement of a statute only against himself, while a successful facial challenge voids [the] enactment in its entirety and in all applications.” 231 Ill. 2d at 498. The majority continues: “Under plaintiffs’ theory, if they prevail, the offending provisions of subsection (j) would be declared void completely, not just as applied to plaintiffs. [Plaintiffs’ challenge] is therefore a facial challenge.” 231 Ill. 2d at 498.
The majority fails to mention Napleton’s additional, somewhat different description of the distinction between facial and as-applied challenges when the challenge is first presented, rather than when a plaintiff prevails. With regard to facial challenges, Napleton explains:
“A facial challenge to the constitutionality of a legislative enactment is the most difficult challenge to mount successfully [citation] because an enactment is facially invalid only if no set of circumstances exists under which it would be valid. [Citation.] The fact that the enactment could be found unconstitutional under some set of circumstances does not establish its facial invalidity.” Napleton, 229 Ill. 2d at 305-06.
Accord People v. Greco, 204 Ill. 2d 400, 407 (2003). By contrast, “in an ‘as applied’ challenge a plaintiff protests against how an enactment was applied in the particular context in which the plaintiff acted or proposed to act, and the facts surrounding the plaintiff’s particular circumstances become relevant.” Napleton, 229 Ill. 2d at 306.
In the case at bar, plaintiffs’ challenge to subsection (j) does not present a “facial” attack. It is premised on religious objections to the rule’s requirements. However, plaintiffs do not — and cannot — allege that every retail pharmacy has such religious objections. Nevertheless, every retail pharmacy must comply with subsection (j). Plaintiffs fail to allege there is no set of circumstances under which subsection (j) would be valid. See, e.g., Greco, 204 Ill. 2d at 407. Even if plaintiffs’ challenge were successful, the rule would not be void “in its entirety and in all applications” (Napleton, 229 Ill. 2d at 306). In this instance, plaintiffs’ claim is an “as applied” challenge rather than a facial attack. Accordingly, the exception to the exhaustion doctrine for facial challenges does not apply here.
Under a second exception to the exhaustion doctrine, a party is not required to exhaust administrative remedies where it would be patently futile to do so. Beahringer v. Page, 204 Ill. 2d 363, 378 (2003); Castaneda v. Illinois Human Rights Comm’n, 132 Ill. 2d 304, 309 (1989). The plaintiff bears the heavy burden of establishing that the futility exception applies to his or her case. See, e.g., Cullen v. Town Council, 850 A.2d 900, 906 (R.I. 2004); Coleman v. Newburgh Enlarged City School District, 319 F. Supp. 2d 446, 450 (S.D.N.Y. 2004); Rann v. Chao, 154 F. Supp. 2d 61, 65 (D.D.C. 2001).
In the case at bar, the majority concludes that this exception applies as well, holding that it would be futile for plaintiffs to seek a variance. The majority points to public statements by the Governor and other defendants allegedly indicating that the purpose of the rule is to coerce pharmacists with religious objections into dispensing emergency contraceptives. The majority states: “[I]t can be concluded that granting variances in these kinds of cases would eviscerate the whole purpose for the rule. Under such circumstances, exhaustion is not required.” 231 Ill. 2d at 501. In reaching this conclusion, the majority notes defendants’ contention that the main target of the rule is not pharmacists with religious objections to emergency contraception, but rather large pharmacies that do not have such religious objections. The majority also notes defendants’ argument that “they are trying to prevent situations where an individual pharmacist with a religious objection is the only one on duty when a Plan B prescription [is presented].” 231 Ill. 2d at 501. However, the majority dismisses these contentions, asserting that defendants should have “more narrowly tailor[ed] the rule to provide an exemption for pharmacies that hold religious objections.” 231 Ill. 2d at 501.
In focusing on public statements to determine the rule’s purpose, the majority is forced to rely on questionable sources such as press releases. The majority should have looked to more appropriate sources such as the rule itself, as amended in April 2008, and the manner in which it is enforced.
The amended version of the rule (see 32 Ill. Reg. 7116, eff. April 16, 2008, amending 68 Ill. Adm. Code §1330.91(j)), which the majority describes in the background section of its opinion, retains the essential features of the previous version of the rule but adds what the majority describes as “several, more onerous provisions pertaining specifically to ‘emergency contraception.’ ” 231 Ill. 2d at 486. Chief among the changes pertaining to emergency contraception is a new dispensing procedure called “remote medication order processing” (RMOP). Notwithstanding the majority’s description of the emergency-contraception changes as “more onerous,” RMOR which takes up the lion’s share of the amendment, actually supports defendants’ claims that (1) the target of the rule is not pharmacists with religious objections to emergency contraception, and (2) defendants are attempting to prevent situations where an individual pharmacist with a religious objection is the only one on duty when a Plan B prescription is presented. Under RMOP, if a pharmacist objects to dispensing emergency contraception and there is no nonobjecting pharmacist present at the dispensing pharmacy, a nonobjecting pharmacist at a different (remote) location may authorize the dispensing of the drug by a nonpharmacist employee at the dispensing pharmacy. 68 Ill. Adm. Code §§1330.91(j)(3)(A), (j)(3)(B) (2008). In addition, a retail pharmacy “is responsible for ensuring either that there is a non-objecting pharmacist scheduled at all times the pharmacy is open, or that there is a licensed pharmacist available to perform RMOP for emergency contraception at all times the pharmacy is open and no non-objecting pharmacist is available at the pharmacy.” 68 Ill. Adm. Code §1330.91(j)(4) (2008).
With regard to the manner in which the rule is enforced, plaintiffs specifically allege only three enforcement actions charging violations of subsection (j). Similar to the amended version of the rule, these three complaints provide support for defendants’ contention that the rule is aimed at large pharmacies that do not have religious objections to emergency contraceptives, rather than pharmacies that hold such objections. Two of the three complaints were filed against Walgreen pharmacies, and the third was filed against an Oseo pharmacy. According to defendants, these enforcement actions “involved large ‘chain’ pharmacies that (unlike plaintiffs) do stock emergency contraceptives and do not have a corporate policy of religious refusals to dispense. In those administrative complaints, the pharmacies allegedly failed to ensure that their employees complied with store policy and instead allowed individual pharmacists to obstruct customers’ access to contraceptives.”
In the case at bar, as previously noted, the majority’s conclusion that the futility exception applies here is based, in large part, on public statements by the Governor and other defendants allegedly indicating that the purpose of the rule is to coerce pharmacists with religious objections into dispensing emergency contraceptives. Assuming, arguendo, that it is proper to base a determination of the rule’s purpose on such public statements, rather than the rule itself and its manner of enforcement, I note that an examination of these public statements raises serious questions as to whether the purpose of the rule actually was, as the majority asserts, to coerce pharmacists with religious objections into dispensing emergency contraceptives.
The majority refers, for example, to public statements by defendants that “they will vigorously prosecute pharmacists with religious objections.” 231 Ill. 2d at 501. The apparent source for this reference is a September 15, 2005, press release from the Department of Financial and Professional Regulation (Department), titled “Three Complaints Filed Against Pharmacies for Failure to Dispense Contraceptives.” While “prosecute” does not appear in the release, the term “vigorously enforcing” does appear in the subheadline, which states: “IDFPR [Department] Vigorously Enforcing Gov. Blagojevich’s Birth Control Rules.” However, the vigorous enforcement referred to in the subheadline applies to pharmacies, not pharmacists. While the release, in describing two of the three complaints, refers to pharmacists refusing to fill prescriptions, the release nevertheless makes clear that the Department’s enforcement actions are against pharmacies. The headline, for example, expressly refers to “Complaints Filed Against Pharmacies.” The first paragraph of the release supports the headline, noting that the complaints were filed against “Illinois pharmacies” and explaining that the rule at issue clarified “the responsibilities of licensed retail pharmacies to fill prescriptions for all FDA approved contraceptives if the drug store dispenses birth control medications.”
In sum, the majority’s unequivocal stating of the purpose is not correct. At a minimum, it is questionable whether the purpose of the rule is to coerce pharmacists with moral objections into dispensing emergency contraceptives, or whether, instead, the rule is aimed at large pharmacies that do not have moral objections to dispensing emergency contraception, as defendants contend. Under the latter purpose, it would not be futile for plaintiffs to seek a variance from the Director. Granting a variance in this situation would not “eviscerate the whole purpose for the rule.”
Because, at the very least, questions remain as to the rule’s purpose, which in turn affects whether the variance procedure is futile, plaintiffs have failed to meet their high burden of establishing that the futility exception applies to them.
In support of its conclusion that the futility exception does apply here, the majority relies on Canel v. Topinka, 212 Ill. 2d 311 (2004), which held that the plaintiff was exempted from exhausting administrative remedies because to do so would have been futile. In Canel, 288 shares of stock belonging to the plaintiff had been turned over to the state as property presumed abandoned. The stock, which was unliquidated, ultimately was returned to the plaintiff, but the state retained the dividends which had accrued on the stock during the time it was held by the state. The plaintiff filed suit in circuit court seeking, inter alia, the return of the dividends on the unliquidated stock. The plaintiff did not comply with the administrative procedure that required him to specifically request a hearing with the Treasurer or seek judicial review of the final administrative decision of the Treasurer. The plaintiff thus failed to exhaust his administrative remedies.
In concluding that the plaintiff was exempt from the exhaustion requirement under the futility exception, Canel stated:
“[T]he pleadings reveal that it would have been futile for plaintiff, or any other similarly situated claimant for that matter, to exhaust administrative remedies with respect to asserting a claim for dividends on stock held by defendants pursuant to the Act because the defendants’ position in these types of cases is that the Act transforms into State property dividends earned on shares of stock presumed abandoned under the Act. Defendants argue that because of that fact they need not return dividends to the previous owner. Section 15 [of the Act], however, clearly contains an exception that provides that claimants may in fact be entitled to dividends on unliquidated stock. Given that defendants, as alleged by plaintiff, have never chosen to exercise their discretion in favor of a claimant — despite the permissive language of the statute — we hold that exhaustion, under these circumstances, was unnecessary ***.” (Emphasis in original.) Canel, 212 Ill. 2d at 322.
Canel is inapposite to the case at bar. In Canel, the defendants’ position was that “the Act transforms into state property dividends earned on shares of stock presumed abandoned.” Canel, 212 Ill. 2d at 322. The defendants argued that, because the dividends were so transformed, they need not be returned to the previous owner. In the instant case, by contrast, defendants argue that plaintiffs should seek a variance from the rule’s requirements. Indeed, as the majority itself notes:
“Defendants also suggest that plaintiffs could get a variance if they could show (1) that they were ‘religious institutions,’ i.e., have true religious objections, and (2) that there were other pharmacies within a certain number of blocks that would be able to fill such prescriptions. Then, defendants argue, the statutory standard for a variance could be met, which requires a showing that no one will be hurt and that application of the rule in this particular case would be burdensome and unreasonable.” 231 Ill. 2d at 501-02.
In Canel, it would have been patently useless for the plaintiff to exhaust administrative remedies, given the defendants’ expressly stated position. That is not the situation in the case at bar. The majority’s reliance on Canel in the instant case is misplaced.
The majority rejects Beahringer v. Page, 204 Ill. 2d 363 (2003), as support for defendants’ argument that the futility exception does not apply in this case. The majority asserts that Beahringer is distinguishable from the case at bar. Notwithstanding the differences between the two cases — indeed, because of one of them — Beahringer is highly relevant to the futility question here.
In Beahringer, the plaintiff inmate filed a grievance over the confiscation of his art supplies by the Illinois Department of Corrections (Department). Under the relevant administrative code provision, a decision on the grievance was required within 45 days “whenever possible.” The plaintiff waited 60 days without receiving a decision or a response, and then filed a complaint for declaratory and injunctive relief. In his complaint, the plaintiff alleged, among other things, that the Department’s grievance procedure was futile in his case because it was the warden who initially approved the confiscation of his art supplies, and grievances filed against warden-approved actions “historically have failed.” Beahringer, 204 Ill. 2d at 378.
Beahringer held that the plaintiff failed to exhaust his administrative remedies, and the futility exception did not apply. The court stated:
“Illinois recognizes a limited ‘futility’ exception to the exhaustion of administrative remedies doctrine. A party will not be required to exhaust his or her administrative remedies when it would be patently useless to do so. [Citation.] ‘However, the fact that there are clear indications that the agency may or will rule adversely is generally inadequate to terminate the administrative process or to avoid the exhaustion requirement.’ ” Beahringer, 204 Ill. 2d at 378.
In Beahringer, the futility exception was held not to apply even though the plaintiff alleged that grievances filed against warden-approved actions historically had failed. In the case at bar, by contrast, there is no indication that requests for section 11 variances have historically failed. Indeed, there is no indication that the Director ever rejected a variance request from a party or parties, situated similarly to plaintiffs, who refused on moral grounds to dispense emergency contraceptives. Beahringer is clearly relevant in determining whether the futility exception applies in the instant case.
I would hold that neither this exception nor the exception for facial challenges applies. The court’s conclusions to the contrary ignore the important policy considerations underlying the exhaustion doctrine, which include: (1) allowing the agency to fully develop and consider the facts of the cause and to utilize its expertise; (2) protecting agency processes from impairment by avoidable interruptions; (3) giving the aggrieved party the opportunity to succeed before the agency; and (4) allowing the agency to correct its own errors, thus conserving valuable judicial resources. Beahringer, 204 Ill. 2d at 375. Moreover, this court has repeatedly stated that cases should be decided on nonconstitutional grounds whenever possible, and constitutional issues should be reached only as a last resort. In re E.H., 224 Ill. 2d 172, 178 (2006). The doctrine of exhaustion of administrative remedies furthers this consideration as well.
If plaintiffs in the case at bar had sought a variance, this would have allowed the Director, at a minimum, “to fully develop and consider the facts of the cause and to utilize [his] expertise.” Beahringer, 204 Ill. 2d at 375. The Director could have determined, for example, whether the application of the rule to plaintiffs would have been unreasonable or unnecessarily burdensome, and whether granting the variance would have resulted in injury to any party. 225 ILCS 85/11(c) (West 2004); 68 Ill. Adm. Code §1330.110(a) (2005). In addition, plaintiffs would have had an opportunity to succeed before the Director, and thus avoid the need for judicial involvement.
I acknowledge that the question posed by plaintiffs’ appeal — whether subsection (j) may validly require the dispensation of emergency contraceptives in the face of religious objections — is an interesting one. However, in view of the important policy reasons supporting the exhaustion doctrine, including our long-standing policy that constitutional issues should be reached only where necessary to decide the case, it is improper for this court to address the subsection (j) question before the Director is given an opportunity to consider it via the section 11 variance procedure. I note, in addition, that plaintiffs are not without a remedy. Under section 11, they may seek a variance excusing their compliance with subsection (j). If unsuccessful, they may then seek judicial relief.
I would affirm the judgment of the appellate court upholding the circuit court’s dismissal of plaintiffs’ complaint. I respectfully dissent.
JUSTICE BURKE joins in this dissent.
The Illinois Administrative Code defines “Director” as “the Director of the Division of Professional Regulation with the authority delegated by the Secretary [of the Department of Financial and Professional Regulation].” 68 Ill. Adm. Code §1330.5 (amended at 30 Ill. Reg. 16930, eff. October 12, 2006).
The Pharmacy Practice Act of 1987 was scheduled to be repealed on January 1, 2008. However, on October 29, 2007, it was amended and renamed the Pharmacy Practice Act, and the repeal date was changed to January 1, 2018. Pub. Act 95 — 689, eff. October 29, 2007 (amending 225 ILCS 85/1 et seq. (West 2006)).