please the court my name is still card going i represent dr mohammad color luden in these proceedings i'd like to devote the majority of my time to the applicability of the doctrine of rescue to caught up to the facts as they apply to  batteries convicted of four misdemeanor batteries placed on probation for one year after his license had been suspended for roxanne we three years the department issued an order restoring that license placing it on probation and subjecting it to various terms and conditions including a chaperon for all examination of female patients as well as a payment of a find of the department any amount of thirty thousand dollars after complying with all of the terms and the passage of six years and after a full evidentiary hearing before the department in order was issued finding that he had he had resume the trust of the state and would spit to resume  practice of medicine in the state of illinois the subject legislation now requires the same department to revoke the same license based on the same criminal convictions which were previously adjudicated by these i respectfully submit that the ruling become vested in can not be affected by subsequent legislation that case concerned track tax credit memorandums which were afforded under a statute there was a decree entered allowing the petitioners in that case the right to transfer those tax credits the law changed saying prohibiting the transfer of trans tax credits the state refused to acknowledge or a law like transferring those tax credits litigation to follow said no their right to transfer those credits is vested and thus despite the change of the law they have that right on this case i submit it's precisely the same  principle same basically the same procedural facts the appellate court did not address the allied construction case and the department briefly discuss conflict between twenty one o five and one sixty five which requires the department to permanently revoked the license can fiction for certain offenses in section twenty two twenty of the medical practice and which grant act as it existed when the prior decree was entered gave the department subjective discretion they exercised it my client relied on it served a substantial suspension paid a substantial fine six years of probation for levin ensuring hearing you are fit to practice medicine that right i submit is a basket case is that the department relying on basically are cases where there's been a change in the law or a change of circumstances and i suggest that they are quite easily distinguished neither of those cases involve the initial case adjudicating so statutory rights the  outline of the corn first he did not say that the sun had a compatible right to electric shock therapy in fact a concern or to reach him bernstein had was riddled with exceptions up treatment plan future review there was nothing in two they can certainly take action appropriate action with sex offenders they've done it with the key facts of my case the state has taken action they suspended his license for three years they put him on probation for six years they held a hearing convictions same parties but now revoking it because the law says we can't right says subsequent legislation cannot affect that right and suppose that bottom line what about the present perfect tense of the parties nothing's changed except there's a new law that says we're going to take what we did before and use it as a permanent revocation but i don't i would i'd like to know there are a couple cases the defen the on the briefs a look at the legislative comments will show that their purpose was to make sure of sex offenders that's the term that's used in the comments repeatedly which is not my clients don't get to practice medicine that vest there for the purpose of this act it's pure human nature when you went analyze it out of the kennedy versus mendota statute at least five of the seven factors favor a conclusion that this quote would effectively allow the department to revive a dead time our claim and unconstitutionally infringe on dr firey and others right to due process doctors write to a time of defense allowed by this court would essentially be rendered meaningless but i know of july twenty first back in two thousand one of and that's exactly what the legislature tried to do when it c change to the health care worker licensing system by requiring the automatic and permanent revocation of a medical license now the department's power to revoke suspend or otherwise discipline related to doctors are far is one thousand nine hundred nine incident and two thousand when mitt misdemeanor defendants have never disputed that because they can't that these limitations had expired that's not an issue before this in my mind illogically concluded that simply because it occurred or at least the statute occurred in a separate amendment that it did not apply to dr farid and i submit that court this court that that reasoning the concept of the statute of limitation is not nullify it simply because we create new legislation that is separate and independent and different sachi that's absolutely not the case here this doctor too far is right vested it became a vested right that's free from legislature interference that's what this court has held so the mere fact we create a subsequent statute that doesn't have a limitations period has no bearing with respect to whether the statute a limitation of law is rather it really has its primary focus is let's look at the limitation period outlined in the medical practice that what's its purpose what's the reason for three and five your limitations it's purpose is to provide the predictability and the finality that is physicians expect that's free from interference that right vested that's vested  that gets into a rather complex argument that i would like to explore with the court because defendants creatively say and i commend them because they say they actually cite a litany of case law that that stands for the proposition that you know if a legislator can create additional licensing requirements right they can they can add it require us to take additional examinations they could do it out of lawyers doctors simply because you're a licensed physician does not mean you are without without the right to to have these additional requirements placed on your license this is the main distinction you cannot do it you can't do it if it interferes with the best to property right i'd like to explain to me again though because this matter comes under the professional regulation law which does not contain the st now simply because this is a separate law and this is what the court and logic held as well simply because it appears in a separate law does not take away a vested right because think of the consequence think about the big picture  let's say from a criminal matter we have a a rate case and we have a separate statute that says you know i believe and i'm not a criminal lawyer so please forgive me if i misquote this but let's say we have the expiration of a seven year statute of limitations but we create something in the civil code that says you know what let's say we find d n a have a dance after that south you know imitation spirit his right what do we do that well let's create a separate act let's say you know if we have  hundred percent proof that that here we have that ability to and that ability to do so to speak i will ring the bell we know who the perpetrator is we can prove with one hundred percent that that criminals right vested at the expiration of that statue the limitations period without her law the legislature subsequently creates i submit to you no matter where it is no that license prior to that date and as a result of that you are on lawfully practicing medicine during that period that's not what they're saying ok it's only from the point of the statute forward ok so what about that and is that point i think that point is saying that it's not that it's disputed your point obviously that this is retroactive application saying retroactive application would be is if during that period prior to the statutes effective date that they would be deemed having been on waffly practicing medicine that's now the standard that is he says from this point forward sex offenders can't wear it as medicine and i think that's an excellent question judge glaring omission from that is to why that that reasoning fails because the this court it held in land grabs this court has said that the law has a retroactive effect three things are true and that's why  while good question we can't rely on the appellate court's terminations as they never looked at this if it does any of the following the law has a retroactive effect period if it attaches new legal consequences to events before if it takes away or impairs that's right acquired under existing laws acquired under existing laws or impairs a right a party possessed when he acted that's why this has a retroactive effect that's why the argument that this is merely a prospect of application based on the scene events fails and in fact if you look at the case law submitted by the defendants and you know none of these cases and this is critical important and i don't think anyone has understood this previously and the vested right to a time defense creates occurred under the medical practice act it's a property right it's a property right established by the supreme court how by the supreme court that this is once that time that reposed period has lapsed that becomes a vested right that the property very correct that is free from legislation been a fe that the legislature cannot provide restrictions on sex offenders licenses going forward i'm simply more you know frankly i mean i submit to score if this if the believe that if we look to statutory age of construction and if we set aside land graph and what man graph requires which is the clear unequivocal expression of intent on the face of the statute which the statute does not have if i were to take away what the law my choir's in terms of intent on the face of the statue and from a person was perspective did they want to bar all you know  frankly i would be dishonest if i said no they're most likely if we if we you know they would probably of like this to apply to everyone but it's not on the face of the statute and that's the requirement and moreover let's say even if it was on this the statute and this is really important let's say this but say the legislature said we intend this to apply to everyone those physicians who have been convicted in the future and have been convicted in the past the mistakes still or has already stated and rio's versus jones that the state has a compelling interest in the practice of professions within its boundaries as part of its power to protect the health and safety of the citizens and it may affect licensing nessus is necessary in furtherance of those interests how do you deal with that versus joe because it can't do so real versus jones and not deal with the vested property rights that's a huge distinction i i'm not in disagreement with real versus jones the problem with that line of case law is none of the cases cited by the defendants dealt with a vested property right and it's universal across the board it bars this you know it bars the legislature from applying this statute from doctor to others when there's a vested right to a time defense it can't you cannot substantially interfere and impair rights when it that right has vested and that's what the key distinction is because you can add additional licensing requirements certainly the legislature is allowed to have this festered right to a time defense is that under no circumstances can the legislature create any iraq regardless of whether it's to protect the public for it whatever reason whatsoever that  research that i do not and i do not under my undergrad i do not believe it unequivocally states the intent and if you look at the the language the lit example there's really no if you look at the plain language and we're going to get and certainly get into this argument if you look at the plane line which has been convicted you is a requirement   one is forcible felony with section eight two states walt has been convicted of any criminal battery against any patient in the course of patient care or treatment including any or fence based on sexual conduct or sexual penetration there is no such crime in illinois is buried on the patient during the course o patient care or treatment there is only a crime listed as bearing so there are questions of fact in this statutory scheme whether a person is a patient is a battery occurred in the course of patient care and treatment that's not a listing crime those are questions are fair and it's unfair to prohibit the health care worker from disputing and participating in brief and as the appellate court noted the plans argument proceeds from the mistaken promise we are in one hundred percent agreement that the statute applies only prospectively it does not apply retroactively and in fact  new eligibility requirements for holding a license in the state of illinois after august twenty twenty eleven indeed after that date anyone who has been convicted of any of the listed crimes including a sex offense or a battery against a patient in the course of treatment may not practice in the health care profession in illinois and that is so by operation of law notwithstanding any other provision of water to the contrary and without regard to get into but visualized  factors that might go into determining whether someone is fit to practice and i think the confusion over whether the statute is retroactive or perspective stems from a misreading of land grab land that provides a test for the court to determine what the legislature intended and if the legislature intended for a statute actively whether that retroactive application is constitutional there does not need to be unequivocal language that the legislature intended the statute to apply retroactively because it didn't intend that so that part of the name graft simply does not matter here the legislature wanted the statute to apply after august twentieth two thousand and eleven and it set new eligibility requirements from that date forward for practicing in these professions in this state and it is in that context that the use of the word has been becomes critical because the legislature uses that phrase when it intends for the person status to be drawn into the statute whether that status was obtained before or after the statutes effective date and just to put a finer point on it the united states supreme court lands graph which this court largely follows made clear that a retroactive statute is one that it's new consequences to completed events so the question here is whether this is impacting completed events the statute here does not make anything unlawful that was previously lawful does not impact the plaintiff's convictions in any way it does not increase their s in any way and it and as justice thomas pointed out it does not do anything to their practice in these professions before august twenty twenty alive and indeed if it did that would be a retroactive application because th would be saying that these plaintiffs engaged in an authorized practice of medicine and that would be adding a new consequences to a completed avenge their practice before august twenty thousand and eleven and because the statute here does not impose those consequences it does not operate retroactively rather the statute really draws upon an antecedent and a conviction to operate in the future it places present and future consequences and present and future conduct the conduct that the statutes seeks to regulate is the practice in these professions after august twentieth twenty eleven and the eligibility to practice after that date in the future is not a complete event  send to be eligible to practice in professions one must not only meet the educational training requirements but also must possess good moral character and so by the statute the general assembly made clear that people who have these convictions on their record are per se unfit do not hold the good moral character to practice in these professions any longer and to be sure that the statute is a blunt instrument for protecting the public before the u s supreme court's decision and united states versus hocker in one thousand nine hundred eighty where the court clearly stated that evidence of a conviction can be evidence of character and the legislature can use that fact alone to bar people from practicing in the profession and that certainly might feel harsh to the individual plaintiffs but the test here is really no objective whether this is rationally related to a legitimate government purpose and that clearly  convictions i disagree that there is a vested right here to be sure they may well have a vested right against the department coming after them again and to discipline them for their conviction the time has passed for that  these circumstances but as i spoke in my brief there is no vested rights to avoid the eligible you pirates for holding a license so you know if the court were to see a case where a c l a requirements you know came in and someone was to argue well you know the time has passed for me to have to see all the requirements i have busted right in my license to not have to undergo those kind of additional training there is just  simply no best right in being eligible currently to practice that is a question that you know gets asked every time someone renews their license is this person still eligible did they meet the c l a requirements so there's no vested right in someone's  it stems back to a line of cases from the united states supreme court that says a legislature cannot undo a court's verdict if it can't do that but that's not what's happening in this case the court that legislature is not undoing the prior disciplinary decisions of the department because again to do that would be acting sort of retroactively by saying we're going back in time and disciplining you for that prior conduct what the legislature is saying is that from the state forward here that all of the requirements for practicing in that profession and that's just you know different from what the allied bridge case is dealing with the legislature is not changing any prior decision about how much disappointed should have been imposed against these plaintiffs whether it's in in an acting and universal rule about ability about the eligibility requirements for practicing and whatever just mary decision was made within the department  flush out the process to carry out it's sort of mandated in the statute of the license and under that process the department sends notice to the doctor and says we've learned that you have a conviction for one of these offenses you have twenty days to respond in writing with supporting documentation to let us know whether you fit within any of the exceptions to the statute and if the doctor can do that by submitting costly affidavit of the patient saying i wasn't a patient during the course of care or some other evidence that shows you know this is not the kind of conviction that falls under that statute so it's not that it's been overruled would be cute or any of those kind of exceptions to those to those to it so there's a here there's an opportunity to debate the issues of whether or not this was in fact in terms of patient here yet there's an opportunity for a paper hearing and you know if it turns out that there's a question about whether you know that really truly was in the course of patient care treatment and the doctor disagrees with the department's final decision that they have safety  but short of that they would have to go to court to develop further maybe maybe there would be a circumstance where there is a question but mostly it can be dealt with on the papers because either you were convicted you know a battery and it the patient during treatment if if if you hit the patient in the parking lot i think that was one of the examples and it has nothing to do with their treatment you can say that in your affidavit i did commit a battery but it was not against a patient during the course of treatment and here is why and then the department can consider that evidence and its partner and rejects that and says in the papers and generally it's the question is whether it's a conviction is very first feted you know otherwise set aside whether a pardon is granted and those are things that are you know easily can be resolved on the paper touching briefly there ex post facto argument to survive on this kind of claim they have to show both that the statute is retroactive and constitutes punishment and because it's not retroactive that's  dispositive on this claim as well but turning to the question of whether this is punishment they have pointed to no evidence of any punitive intent on the part of the legislature and the court applies the kind of the factors to determine whether despite the lack of also conceded that regulating a license is not traditionally viewed as a punishment so the questions here are whether there's an intent requirement in the statute and there is not th protect the public and there's a suggestion that if the plaintiffs had known about the statute it was possible that they would have acted differently but the fact that they are licensed could have been revoked under the medical practice act and that they best they may well have invested right in not being disciplined again by the department or having discipline be considered under the medical practice act the part of acting in its discretion but they have no vested right in voiding the eligibility requirements for licensure so put another way no one can say you know i have a vested right so i don't have to meet educational requirements i have a vested right so i don't have to meet that training requirement the eligible eligibility requirements for a license there is no vested right in avoiding those so they have a right possibly to avoid discipline which is different and what the statute is doing for those convictions again that would pose a residue to cause a problem probably as well so but they have no vested right in not following the basic eligibility requirements for holding the license i see my time is up to be clear we are not arguing that there is a vested right but dr foreign has a vested right to be freed from additional licensure requirements that's not why i'm here the the core we need to really make a distinction because there can be some confusion about what defendant is arguing with respect to the prospect of application based on and into season events and the retroactivity analysis and statutory riposte period even after the proposed period was abolished by the legislature and defendants are claiming we have that right and i think it's important to  to to acknowledge that now one of the things we also have to do is look at the intent of the legislature requiring clear intent that is sure is that congress itself has of permanently considered the potential unfairness of the retroactive application and determine that is an acceptable price to pay for counterfeit countervailing benefits so essentially have the legislature looked at clearly on  statute the consequences of it and it has not and if you look at the case law you know i think i think defend its main argument what i'm hearing is that if you look at the case law with respect to the medical records that defendants created after the passage of statute allowing those records to be confidential this is a case cited by defendants the court rejected that it had a retroactive impact but merely said it was prospect of based on the honesty in the vents the court acknowledge you look at that case this is another case sad wishing eligibility requirements that defendants are relying on for you know it they've seem to this retroactive application i'll get to that as well but they're relying on this prospect of analysis based on an assumed event and the case is you know the court held in another case establishing eligibility requirements the court held that in order for statute to have a retroactive effect it must reach back and interfere with the vested right so here's here's the distinguishing factor that i think i'll conclude on we have the defense argument with  respect to the prospect of analysis but there's one huge glaring admission there's one big hole and that big hole has to deal with eight the last states that sash you or any law for that matter has a retroactive impact if you creates new legal consequences or if it impairs a vested right or if it impairs rights to a party and writes a party had  acted dr drew far he had a right to be free from discipline under the medical practice act after two thousand and four defendants do not contest that they are merely saying this is because this is a separate amendment idea to be are can completely yank his license for or for another reason but the expectation the fundamental principles of finality of predictability would be completely stripped away if this court allows idea of p r to revoke doctor to fire his license not only that it would interfere with what this court has recognized and establish not only in  practice act as relates to existing license holders that's a discipline and whether they want to call it an eligibility requirement commit any way they want that rate hearing doesn't affect the l i case his right to practice medicine this isn't eligibility to these to these positions this is a discipline the statute of limitation said if you're going to discipline a physician you've got a time period it's ten years later for some of these positions and this new legislation in a different aspect isn't doing anything but disciplining the slices last comic and i'm sure counsel covered this paper hearing this is just made up today i think it doesn't exist anywhere the notice said if you weren't convicted of these these can be things let us know that you're here and mostly paper alone and regulations  this is this doesn't exist in this stage you're a list you're done i find this law riddled with problems