attorneys who are going to orally argue please step up introduce yourself to the court please call a case good morning john it's me please the court counsel my name is paul reset i mean assistant attorney general for the state of illinois and i represent the only department of financial and professional regulation in this appeal this is an administrative review matter in which the circuit court re mandate for a new hearing regarding the appropriate sanction to be placed on the nursing license of a registered nurse for a felony conviction and for failure to report that connection to the department the circuit court remained it for a new hearing for two reasons the first is that the a l j denied to mesa's request to call the department's attorney as a witness at the evidentiary hearing and the other reason was that the department did not give copies of its decisions in similar circumstances in response to a discovery request that was filed by the mesa what's the standard of review your standard of review for reviewing that with the circuit court it is abuse of discretion of discretion but it's a little more complicated here because the survey quote was supposed to apply the abuse of disc indefinite suspension because he said she should be allowed to have a new hearing where she can call the department's attorney as a witness and that she should have these other decisions are released to her and in response or to start requests so right so so we are asking  part of our relief that if this court finds that the remains of the department was improper that it should itself be the division directors decision to impose the rather than send it back to the circuit court which is really just functioning as a reviewing court and administrative review action of removing the respirator i don't think they would have charged thirty six counts for one removal of the respirator you know the let the record is very limited because the only things that we have from the criminal court is the sentencing order and the destruction probation but from my understanding of the case of all we don't control the speed that the criminal case goes so and in fact she didn't say guilty to almost a year after the informal conference plus there might not have been a conviction that sixteen might have dropped the charges she might have been acquitted and in a case like that there would have been no conviction and there would be no need to report a conviction so in a case like back you know it never would have been an issue of the other two about relations of the air she actually consent order she she  because if you look at that section of the nurse practice act that sets out the grounds for discipline and they could all be brought at the same time with the department chose to wait until after the criminal case was result but it doesn't have to and they are separate and both a l j and denying the dismiss and the circuit court recognized that there is no you know double jeopardy problem in the double jeopardy doesn't apply to administer proceedings because the elements were different and when someone can commit unprofessional conduct such as having an affair with a patient and that's not criminal and someone can also commit criminal conduct that has nothing to do with a patient like a felony dui or whatever so there could be all sorts of categories where there is overlap and there isn't overlap but in this particular case the first proceeding only had to do with whether removing the respirator was unprofessional unethical discernible conduct and that's all that was resolved it was resolved through some of negotiations and a consent order so there was no l j hearing on that and it didn't go up to the board of nursing and the division director with fin potential witness in a list of seven in response to the department's discovery request she never follow requests to produce the department's attorney at the hearing as department head in regards to debase or herself she never sought a subpoena compelling the department of trade to testify and she did request a hearing under the advocate witness rule which would have required the l g to decide whether this is one of those unusual cases where the attorney must testify even though representing a party in the case because the testimony is absolutely necessary and there's no one else from which the testimony can be obtained here she just one of the attorney to corroborate her own testimony and was about stuff that was undisputed lottery right  charges were pending which we also don't dispute so the attorneys testimony would have added nothing that would have been relevant it's aruba or an attorney is called on to be a witness in the case it is your honor ok but the court does have the he didn't say there was no other source he just said that because to me so was a layperson that it might be helpful but it really i was having well following that logic because really if you look at it this case she admits both things that she was convicted of a felony and that she didn't report the conviction so the only thing that's relevant as to what the sanction should be is what her state of mind is which is something that the department attorney would not have any input into the basis two reasons for not reporting where that she said she didn't know that she had to report but ignorance of the law is no excuse and also that she thought the department already knew about the convictions well the department couldn't have known about the convictions because they happened a year later i mean they knew the criminal charges were pending but they didn't know whether she would be acquitted or whether the charges would be dropped or plus the of the legislature has placed if i'm going to be on the on and the nurse to report the conviction and it doesn't have an exception that says she doesn't have to report it the department already knows about it or if a third party such as the prosecutor here informs the department of the conviction so really this was a red herring to go and she even wanted but the attorney for the department knew it wouldn't have helped her case in any meaningful  plus being highly unusual and she didn't even explain the reasons today o j before his ruling as to why this testimony was supposedly needed unless the court is further questions i would like to save a couple minutes f regarding the d p our action against my client was to mesa a former prosecutor for thirteen years d p medical and nursing prosecutor when we had the initial conference with the notion board with my clients every one of the allegations regarding the criminal action was discussed with the member of the nursing board ethnos bomb who was a prosecutor with d p r as well as with my client my client had gone into great detail about her conduct pertaining to the six or seven year old child that was on the respirator the nursing board the reason they've recommended a reprimand was soley because they only felt that the only improper conduct it that she did not have a doctor's order specified to take the child off the respirator even though a lot of times they will do that to try and strengthen their breathing  router but what happened was even at the criminal level she pled guilty to one felony count for twenty four months probation my client did not spend any time for hurting a six or seven year old child into we supposed to abrogate the meaning of this is judge i'm just saying that the department all these allegations were discussed in great detail with a number of the department and the notion board during the conference which a report is he and she filed in two thousand and eight had to be registered but she never mentioned it and the only way it came to the attention of the state was through the state's attorney now if you have a system that does that how do you assure point direct and then she was when she was arrested was that with the complaint for preliminary examination attached to it or just an arrest warrant or she was just awesome justice or rather judge oh and then sometime after that she served four days pay waiting to get by on what he judged it was not at the end of her sentence where they said are any decisions a four probation you're going to serve an extra four days that's because it took time for her to get done what and after that she was released immediately she completed her probation y lying department is making things up i suggested i'm not asking for a response sorry don't do that that's not right it's not right to pretend to be outraged about something where he said existed six pages earlier it's just not right it doesn't of him which is was the sanction too severe did tommy allen ever reach that judge will oh what happened judge was that's why he remained it back to find out if we can receive some sort of evidence from the department that this discipline is consistent with discipline that they had merited out in the past it was remanded for them for they have reason and under what theory can a circuit court judge order their kind of discovery in this kind of  state saying you're making us do all the work these are all public records you can go in there look at them any time that there was a law you could have been doing and they're saying but you're really asking for is for the state to the other work for issue regarding regarding that is the department had prosecutors that have had recent cases that they had righted act did that was accessible to them out regarding unprofessional conduct re the judge who saw my client's demeanor the judge who witnessed how she was how we presented our case he died and the judge who ruled by this never had a chance to see anything all he call the other side's prosecutor but ok but rush was put out she was on the list of our witnesses she was from the very beginning they knew that we were going to call her it was conditional we may order of the body the order of states that no harm to the public took place in that they did not feel that my client was to the public that was her signature that was her that led me to say she'd have a welcome hand after this  well first of all getting back to the want to she was far as the judge in the case who witnessed the never had a chance to file his report he never had a chance the nursing word reviewed it and the director never so that issue is totally forfeited but even if there weren't other departments discovery rules are much more limited than they are in the circuit court and they don't allow this sort of discovery and we did invite them to comment spend a couple hours looking through they were looking for a very discreet carry just a five year period they were welcome to come in any time during office hours and the through the decisions they chose to decline an invitation so that was correct we said we're not required to give it to you however you can come in any time you want and look through the decisions yourself and one of that both of them have worked at the department so they're familiar with the department's decisions and would presumably be able to do that fairly efficiently the other thing is they they can issue an appeal of the fact that the app the renewal application is not in the record but there was no reason to put it in the record because the mesa admitted under oath that she did not report on her renewal application that she was convicted plus she repeatedly stated that she did i did not report it at any time in any way so she never call the department she never emailed department never sent a letter to the department it's hard is it to put in you're actually taking away a livelihood and nationally to report so the hearing was just on what the appropriate sanction should be so at that point we didn't need to prove that she didn't report the she was admitting that it was almost like a sentencing hearing where you're just looking at should she get another reprimand should she get a total revocation of her license or should there be something in between like a suspension which was imposed here the other thing is the issue about the l j passing away that was not one of the reasons why the circuit court sent it back for a new hearing number one number two that's not an argument they're making in their brief and number three there were no credibility determinations to make because the mesa was the only witness and no one is even counted that her reasons that she gave were were not truthful she said i didn't know i had to report and i assume that the department knew we hadn't said that she knew she had a reporter she didn't believe that the department already knew so why would why would the same l j why couldn't any a l j review that record and say you know we did that these are your reasons but they're just not very good reasons and we're not going to give you just slap on the wrist for this so so just because l j died that there's no independent reason for sending it back for a new hearing unless the court has further questions we would ask that you reverse the circuit court's order and then perhaps in your