dissenting:
I write today to emphasize again my strong and sustained disagreement with the decision of the majority in this case. Dr. Desnick has been deprived of both his procedural and substantive constitutional rights as a result of this court’s decision. He has never had his day in court: no evidence was ever presented against him, no opportunity to rebut was ever afforded him; yet it has been decided by the majority that the State may prohibit and suppress his alleged speech, not because it was harmful or untruthful, but as a preventative measure. I cannot countenance such an unjust result.
The majority has concluded that section 22(A)(24) of the Illinois Medical Practice Act of 1987 (Ill. Rev. Stat. 1991, ch. 111, par. 4400 — 1 et seq.) may be applied to prohibit Desnick’s speech under the "circumstances” of the case at bar. Desnick v. Illinois Department of Professional Regulation, 171 Ill. 2d 510, 513 (1996). In light of the procedural posture in which we received this case (see 171 Ill. 2d at 543-44 (McMorrow, J., dissenting)), one can only respond to this conclusion with a question: what circumstances? Dr. Desnick’s complaint before the circuit court challenged only the facial validity of section 22(A)(24). No discovery took place, no testimony was taken, no evidence of any kind was presented to the court. Yet, incredibly, the majority, sua sponte and without the benefit of an evidentiary hearing, reaches the conclusion that section 22(A)(24) may be constitutionally applied to prohibit Dr. Desnick’s alleged speech. It is axiomatic that this court will not render advisory opinions, give legal advice as to future events, or reach issues which are not essential to the disposition of the cause before it. See, e.g., People ex rel. Sklowdowski v. State of Illinois, 162 Ill. 2d 117, 130-31 (1994); Barth v. Reagan, 139 Ill. 2d 399, 419 (1990); Condon v. American Telephone & Telegraph Co., 136 Ill. 2d 95, 99 (1990). It is incomprehensible to me that the majority feels justified in reaching the merits of a constitutional as applied challenge (although such a challenge was not argued to the circuit court) without the presentment or circuit court’s consideration of any evidence.
Equally as disturbing as the majority’s headlong rush to reach its unfounded result in this case is the analysis employed in obtaining that result. In conducting its constitutional as applied analysis, the majority relies heavily upon separate, unproven allegations in the Department of Professional Regulation’s disciplinary complaint which charged Dr. Desnick with malpractice and other forms of misconduct. The Department never argued that these separate charges were related in any way to Dr. Desnick’s telemarketing, and the circuit court noted that they were irrelevant to the sole issue before it, i.e., the free speech issue. More importantly, even a cursory examination of the record in the case at bar reveals that the separate allegations regarding Dr. Desnick’s misconduct are just that — allegations, and nothing more. Dr. Desnick may have committed these separate acts, and then again, he may not have. Again, no evidence has been presented to conclude or assume that he committed these separate acts. Thus, at this juncture, we do not know what, if any, Dr. Desnick has done. By relying on these separate, unproven allegations, the majority has itself ignored the record before it; and, in the process, dispensed with principles of fundamental fairness. There is no justification for this undertaking. I am troubled by the apparent ease with which it has occurred.
For the reasons stated more fully in my dissent to the majority opinion (171 Ill. 2d at 546 (McMorrow, J., dissenting)), I must also voice my disagreement with the majority’s ultimate conclusion on the merits. It is not contended that Dr. Desnick’s telemarketing conversations were untruthful, misleading or unlawful. The majority has determined — again, without the benefit of any evidentiary record — that the simple act of phoning senior citizens and offering them a free eye examination is so " 'inherently conducive to overreaching and other forms of misconduct’ ” (171 Ill. 2d at 533, quoting Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 464, 56 L. Ed. 2d 444, 459, 98 S. Ct. 1912, 1923) that the State may prevent such phone calls before they have occurred. This conclusion is completely contrary to established Supreme Court precedent which has made clear that the State may act to prevent professional solicitation only where that solicitation poses a threat of imminent harm and where that harm is, for all practical purposes, unavoidable. Unquestionably, those conditions are not met with the phone calls which are alleged to have occurred here.
I believe this decision is deeply and irredeemably flawed. The decision results in the violation of Dr. Desnick’s protective first amendment constitutional rights — rights which should be zealously guarded by the courts, not taken away without any evidence to justify so serious a deprivation. Accordingly, I dissent from the denial of the petition for rehearing.