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Docket No. 94073-Agenda 8-May 2003.

THAD VUAGNIAUX, Appellee, v. THE DEPARTMENT OF PROFESSIONAL REGULATION et al., Appellants.

Opinion filed November 20, 2003.

JUSTICE RARICK delivered the opinion of the court:

Dr. Thad Vuagniaux, a licensed chiropractic physician, wasreprimanded by the Department of Professional Regulation (theDepartment) and fined the sum of $2,500 for violating the advertisingprovisions set forth in section 26 of the Medical Practice Act of 1987(225 ILCS 60/26 (West 1998)). On administrative review of theDepartment's decision, the circuit court of Madison County reversed.In so doing, it found various sections of the Medical Practice Act,including section 26's advertising restrictions, to be unconstitutionaland void. The Department appealed. Because the circuit court'sjudgment held statutes of the State of Illinois to be invalid, the appealwas taken directly to our court. 134 Ill. 2d R. 302(a). For the reasonsthat follow, we affirm in part, reverse in part and remand for furtherproceedings.

Although the record in this case is voluminous, the factsnecessary to the disposition are straightforward. Thad Vuagniauxgraduated from Logan Chiropractic College in 1993 and was licensedas a chiropractor by the State of Illinois in 1994. At all relevant times,Vuagniaux has maintained a practice in Madison County, Illinois,located in the St. Louis, Missouri, metropolitan area.

Two years after receiving his license, Vuagniaux published aseries of advertisements for his practice in the St. Louis Post-Dispatch. The advertisements, which ran throughout 1996, appearedin editions of the paper circulated in Illinois. Each ad addressed adifferent ailment. The ailments discussed were migraine headaches,asthma, fibromylagia, carpal tunnel syndrome, Crohn'sDisease/irritable bowel syndrome, learning disorders, "TMJDysfunction," whiplash and vertebral subluxations, and Meniere'sDisease/vertigo.

Vuagniaux's ads described the causes and symptoms of theforegoing conditions and linked each of them to interference with thebrain stem. The ads stated that a procedure termed "SpecificChiropractic" corrects or removes interference to the brain stem,enabling sufferers to recover normal function and achieve their "fullesthealth potential without the use of drugs or surgery."

Vuagniaux's ads publicized that he employed "SpecificChiropractic" in his practice. In fact, the first two ads represented thathe was one of only two "Certified Brain Stem Specialists" in the St.Louis metropolitan area. Those ads included, under his photo, thenotation that he is a "Kale Certified Brain Stem Specialist" and anofficer of the "Kale International Research Council." Vuagniaux'sthird ad deleted the references to his being certified or a specialist andindicated simply that he was one of only two "Specific Chiropractors"in the St. Louis area. The same claim appeared in the fourth ad, butwas deleted from the fifth and all subsequent ads.

Publication of Vuagniaux's ads elicited complaints from otherchiropractors. After investigating the matter, the Department initiateddisciplinary proceedings against Vuagniaux pursuant to section 22 ofthe Medical Practice Act of 1987 (225 ILCS 60/22 (West 1998)). TheDepartment's complaint, which contained three counts, asked thatVuagniaux's license be suspended, revoked, or otherwise disciplinedon the grounds that his ads violated the provisions of the MedicalPractice Act governing advertising.

Advertising by persons licensed under the Medical MalpracticeAct is subject to section 26 of the statute (225 ILCS 60/26 (West1998)). Section 26 permits licensees to advertise the availability oftheir professional services in the public media or on the premiseswhere the services are rendered. The statute provides, however, thatany such advertising is limited to certain types of information.Information that may be published under the statute includes thelicensee's "name, title, office hours, address and telephone number"(225 ILCS 60/26(a) (West 1998)); his "usual and customary fees forroutine professional services" (225 ILCS 60/26(c) (West 1998)); his"areas of specialization, including appropriate board certification orlimitation of professional practice" (225 ILCS 60/26(b) (West 1998));announcement of the "opening of, change of, absence from, or returnto business" (225 ILCS 60/26(d) (West 1998)); announcement ofchanges in professional licensed staff (225 ILCS 60/26(e) (West1998)); and issuance of business or appointment cards (225 ILCS60/26(f) (West 1998)).

Counts I and III of the Department's complaint both chargedviolations of the foregoing provisions. Count III made a generalallegation that Vuagniaux's ads all contravened the Medical PracticeAct because they are "not limited in the information provided to theinformation permitted in [section 26]." Count I focused specifically onthe ads representing Vuagniaux as a "Certified Brain Stem Specialist"and a "Kale Certified Brain Stem Specialist." According to theDepartment, those ads violated the Act because the specialtiesidentified in the ad were not legitimate. In the words of the complaint,"[t]here is no appropriate board certification as a Certified Brain StemSpecialist or a Kale Certified Brain Stem Specialist in Chiropracticmedicine."

In addition to limiting the types of information a licensee mayinclude in his advertising, section 26 of the Medical Practice Act alsoforbids a licensee from using statements in his advertising that contain"false, fraudulent, deceptive or misleading material or *** statementswhich play upon the vanity or fears of the public." 225 ILCS 60/26(West 1998). Count II of the Department's complaint was premisedon that prohibition. It alleged that Vuagniaux's claims thatchiropractic treatment of the brain stem will treat asthma, Meniere'sdisease, learning disorders and the other conditions mentioned in thevarious ads "are deceptive or misleading and play upon the fears of thepublic."

After the Department served Vuagniaux with its administrativecomplaint, Vuagniaux sought declaratory and injunctive relief fromthe circuit court of Madison County to prevent the disciplinaryproceedings against him from going forward. Vuagniaux's complaint,as amended, raised a variety of issues regarding the fairness andconstitutionality of the process by which chiropractors in Illinois aresubject to discipline and the standards by which their conduct isjudged. Among the claims he made were (1) that subjectingchiropractors to regulation by the Department's Medical DisciplinaryBoard, which by statute includes but a single chiropractor among itsseven voting members, denies chiropractors their rights to due processand equal protection, (2) that the advertising provisions in section 26of the Medical Practice Act are uncertain and vague, and theDepartment has failed to enact standards for assessing whether thoseprovisions have been violated, (3) that the Department has failed toadopt meaningful rules of discovery, and (4) that the Departmentshould not be allowed to limit the location of evidentiary hearings indisciplinary matters to Chicago and Springfield.

At the same time he pursued this civil action, Vuagniauxvigorously contested various developments in the Department'sdisciplinary action against him. Among the actions he took was tomove for exclusion of Dr. Lacy Cook, the sole chiropractic memberof the Medical Disciplinary Board, from further participation in hiscase. Vuagniaux based that motion on claims that Cook would beprejudiced against him and the chiropractic theories he followed.Although the administrative law judge assigned to the case found noactual prejudice by Cook, the administrative law judge grantedVuagniaux's motion and excluded Cook to avoid the appearance ofprejudice.

Once Cook was excluded from the case, the Department movedfor appointment of a "Special Chiropractor" to the MedicalDisciplinary Board so that the Board would include a chiropracticmember when it considered Vuagniaux's case. The administrative lawjudge referred the motion to the Board for its consideration. TheBoard granted the motion and named Dr. Roger Pope, a doctor ofchiropractic, to serve in Cook's place on the Board for the purposesof these proceedings.

Vuagniaux raised objections to Pope's appointment in both thedisciplinary proceeding and the civil action. The principle basis forVuagniaux's objection was that the Board's appointment violated theMedical Practice Act, which specifies that members of the MedicalDisciplinary Board are "to be appointed by the Governor by and withthe advice and consent of the Senate." 225 ILCS 60/7(A) (West1998). Vuagniaux further claimed that the appointment would infringeon his right to confront and cross-examine witnesses.

Vuagniaux's objection to Pope's inclusion on the Board wentunheeded. A motion he filed in the administrative proceeding forjudgment on the pleadings or, in the alternative, to dismiss, wasdenied. Vuagniaux then moved for a preliminary injunction in his civilaction. When that motion was also denied, an administrative hearingon the Department's disciplinary complaint was convened. Thehearing took place over a series of dates during the summer of 1998.In the course of the hearing, the administrative law judge allowed theDepartment to delete from count II of its complaint the allegationspertaining to whiplash and vertebral subluxations. Experts witnesseswere called by both sides, and Vuagniaux testified on his own behalf.

Following the hearing, the administrative law judge issued herfindings and recommendations in accordance with section 35 of theMedical Practice Act (225 ILCS 60/35 (West 1998)). Theadministrative law judge concluded that the Department had provedall three counts of its complaint by clear and convincing evidence andrecommended to the Medical Disciplinary Board that Vuagniaux befined the sum of $2,500. The Medical Disciplinary Board adopted theadministrative law judge's findings of fact and conclusions of law. Italso agreed with the administrative law judge's recommendation thatVuagniaux be fined $2,500. Unlike the administrative law judge,however, the Board believed that the sanctions imposed on Vuagniauxshould also include a reprimand. The Board's recommendation, madewith the concurrence of five members, including the speciallyappointed chiropractor, Pope, was adopted by the Department'sdirector. In an order signed by the director and dated December 16,1998, the Department reprimanded Vuagniaux's license and orderedhim to pay a $2,500 fine.

Vuagniaux sought administrative review of the Department'sdecision pursuant to article III of the Code of Civil Procedure (theAdministrative Review Law) (735 ILCS 5/3-101 et seq. (West 1998))in the circuit court of Madison County. On Vuagniaux's motion, thecircuit court subsequently consolidated that action with Vuagniaux'ssuit for declaratory and injunctive relief and allowed Vuagniaux tomake various amendments to his complaint for declaratory andinjunctive relief. Following those amendments, the Department movedfor summary judgment against Vuagniaux on his suit for a declaratoryjudgment and injunction. As grounds for its motion, the Departmentargued that where, as here, the Administrative Review Law isapplicable and provides a remedy, the circuit court may not redress aparty's grievance through any other type of action. The circuit courtfound this argument to be meritorious, granted the Department'smotion for summary judgment, and dismissed Vuagniaux's complaintfor declaratory and injunctive relief with prejudice.

The proceedings for administrative review remained pending.Vuagniaux was allowed to amend his complaint for administrativereview to include a number of different claims, including claims he hadpreviously asserted in his action for declaratory and injunctive relief.Following a hearing, the circuit court entered an order setting asidethe Department's decision and dismissing the Department's complaintagainst Vuagniaux. The court gave numerous reasons for reachingthat decision. Among these were that appointment of Dr. Pope toreplace Dr. Cook on the Medical Disciplinary Board was notauthorized by law and was unconstitutional, that the statutorycomposition of the Board violates due process and equal protection,that the Department's administrative complaint was defective, that theDepartment had failed to properly prove its case against Vuagniaux,and that the provisions of the Medical Practice Act regulatingadvertising are unconstitutionally vague and violate "Vuagniaux'sright to engage in free commercial and educational speech." Thisappeal by the Department followed.

The Department took its appeal directly to us based on the circuitcourt's determination that provisions of the Medical Practice Act wereinvalid. See 134 Ill. 2d R. 302(a). Although the constitutionality ofthose provisions has been the focus of the parties' arguments in ourcourt, a fundamental principle of judicial decisionmaking is thatquestions regarding the constitutionality of statutes should beconsidered "only where essential to the disposition of a case, i.e.,where the case cannot be determined on other grounds." Bonaguro v.County Officers Electoral Board, 158 Ill. 2d 391, 396 (1994). Havingreviewed the record and the applicable law, we have concluded thatthe disciplinary action undertaken by the Department in this casesuffered from a basic flaw which rendered its decision invalid forreasons wholly unrelated to the constitutionality of the MedicalPractice Act.

The problem with the proceedings is that the Medical DisciplinaryBoard, the administrative body charged with enforcing the provisionsof the Act pertaining to discipline, was not properly constituted whenit considered Vuagniaux's case on the merits and recommended thathis license be disciplined. It was improperly constituted because itincluded Pope, the chiropractor appointed by the Board to replaceCook after Cook was excluded from further participation in the caseby the administrative law judge. As Vuagniaux has consistentlyargued, and as the circuit court correctly determined, Pope'sappointment was impermissible because the Board had no statutory orconstitutional authority to make it.

The Medical Practice Act plainly provides that all members of theMedical Disciplinary Board are "to be appointed by the Governor byand with the advice and consent of the Senate." 225 ILCS 60/7(A)(West 1998). There is no situation under the Act where anyone otherthan the Governor, by and with the advice and consent of the Senate,may appoint a person to be a member of the Board. Upon expirationof the Board members' terms, their successors must be appointed bythe Governor by and with the consent of the Senate. If a vacancyoccurs before the expiration of a Board member's term, it is theGovernor, by and with the advice and consent of the Senate, who isauthorized to fill the vacancy. 225 ILCS 60/7(B) (West 1998).

There are two circumstances in which the Governor can takeaction with regard to Board members without involving the Senate.The first is where the Board has recommended that a member beremoved for misfeasance, malfeasance, or wilful neglect of duty. Insuch a case, the Governor may remove the offending member on hisown, after notice and a public hearing, unless the member expresslywaives the right to such notice and hearing in writing. 225 ILCS60/7(B) (West 1998). The second is where a vacancy occurs while theSenate is in recess. There, the basic constitutional provisionsgoverning recess appointments apply and the Governor is authorizedto "make a temporary appointment until the next meeting of theSenate, when he shall make a nomination to fill such office." Ill.Const. 1970, art. V,