Three v. The Department of Public Health

FIRST DIVISION
May 22, 2017

No. 1-16-2548
2017 IL App (1st) 162548

IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT

)
JOHN DOE THREE, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
) No. 15 CH 16766
THE DEPARTMENT OF PUBLIC )
HEALTH and NIRAV D. SHAH, M.D., J.D., )
Director of Public Health, ) Honorable
) Neil H. Cohen,
Defendants-Appellants. ) Judge Presiding.
)

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
No. 1-16-2548

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.” See 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

1
This court stayed enforcement of the circuit court’s amended order pending this appeal.
2
The administrative rules found in 77 Ill. Adm. Code 946.30 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

2
No. 1-16-2548

¶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 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

in place that amended 77 Ill. Adm. Code 946.30(a) but did not make any changes to the remaining subsections in
section 946.30 specifically cited in this opinion. 39 Ill. Reg. 444, 456-62 (emergency rule eff. Dec. 22, 2014).

3
No. 1-16-2548

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 77 Ill. Adm. Code 946 was filed on August 1, 2016, and was to remain effective for
150 days. 40 Ill. Reg. 10992 (emergency rule eff. Aug. 1, 2016). The August 1, 2016, emergency amendment to 77
Ill. Adm. Code 946 was later amended on September 16, 2016. 40 Ill. Reg. 13732 (emergency rule eff. Sept. 16,
2016).

4
No. 1-16-2548

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.

5
No. 1-16-2548

¶ 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 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

6
No. 1-16-2548

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

7
No. 1-16-2548

[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).

¶ 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

8
No. 1-16-2548

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

9
No. 1-16-2548

¶ 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.

¶ 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

10
No. 1-16-2548

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).

11
No. 1-16-2548

¶ 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

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

12
No. 1-16-2548

¶ 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

13
No. 1-16-2548

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

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

14
No. 1-16-2548

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

15
No. 1-16-2548

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.

¶ 38 CONCLUSION

¶ 39 Accordingly, for the reasons set forth above, we affirm in part the judgment of the circuit

court of Cook County in so much 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.

16