de la Rosa v. Zollar

July 30, 1997


LUZVIMINDA de la ROSA,                      )    APPEAL FROM
                                            )    THE CIRCUIT COURT
                   Plaintiff-Appellee,      )    COOK COUNTY, ILLINOIS
                                            )    COUNTY DEPARTMENT,
                                            )    CHANCERY DIVISION
                                            )
         v.                                 )    No. 95 CH 3870
                                            )                
NIKKI ZOLLAR, as Director of the            )    
Department of Professional Regulation,      )
THE DEPARTMENT OF PROFESSIONAL              )    THE HONORABLE
REGULATION, and the Members of the          )    AARON JAFFE,
Committee of Nurse Examiners,               )    JUDGE PRESIDING.
                                            )    
                   Defendants-Appellants.   )    
                                            )    
                                            
         PRESIDING JUSTICE COUSINS delivered the opinion of the
court:
         Plaintiff, Luzviminda de la Rosa (de la Rosa), filed a
complaint for administrative review against defendants, the
Illinois Department of Professional Regulation (Department), the
Department's Director, Nikki M. Zollar, and the members of the
Committee of Nurse Examiners, seeking reversal of the
Department's denial of her application for licensure as a
registered professional nurse by endorsement of her California
license, which she received when she passed the National Council
Licensure Examination (NCLEX), a nationally given standardized
exam.  The trial court reversed the Department's decision and
ordered it to issue a license to plaintiff.  The Department
appealed.
         On appeal, defendants contend that: (1) the trial court
erred when it reversed the Department's decision because
plaintiff failed to satisfy the statutory requirements for
licensure by endorsement in Illinois; (2) the Department properly
denied plaintiff's application for licensure by endorsement
because the licensing requirements in California were not
substantially equal to the licensing requirements in Illinois;
(3) the Department properly denied plaintiff's application for
licensure by endorsement because, pursuant to this court's
decision in Valdez v. Zollar, 281 Ill. App. 3d 329, 665 N.E.2d 560 (1996), plaintiff did not pass the NCLEX until February 1994,
one year after the date at which the 1990 amendment could be
enforced to bar pre-1990 applicants.
BACKGROUND
         In order to become a registered nurse, plaintiff initially 
attempted to pass the precursor to the NCLEX in Illinois in July
1984.  She failed that exam.  She attempted to pass the exam
again in July 1986, February 1987, and July 1987.  At the time of
these exams, the Illinois Nursing Act (Act), (Ill. Rev. Stat.
1983, ch. 111, par. 3428.2) prohibited the licensing of persons
who had failed the exam six times until they had retaken the
entire course of nursing study. See Yu v. Clayton, 147 Ill. App.
3d 350, 352, 497 N.E.2d 1278 (1986).   
         In 1987, the Act was amended and limited an applicant to a
total of six opportunities to pass the NCLEX within three years. 
Ill. Rev. Stat. 1987, ch. 111, par. 3515. See Valdez, 281 Ill.
App. 3d at 331.  If the applicant failed the NCLEX a total of six
times within three years, the applicant would be ineligible to
take any further examinations or to be issued a license until
such time as the applicant submitted to the Department evidence
of the recompletion of the entire course of study.  Ill. Rev.
Stat. 1987, ch. 111, par. 3515.  Plaintiff made another attempt
to pass the NCLEX in California in July 1993, but failed again.
         Effective January 1, 1990, the Act was again amended and
presently requires:
                  "[A]ny person in this State or in any other jurisdiction of
         the United States who fails to pass an examination within 3
         years to determine the fitness of such person to receive a
         license as a registered professional nurse *** shall
         thereafter be ineligible to take any further examination or
         examinations, or be issued a license, until such time *** of
         the recompletion of the entire course of study ***."
         (Emphasis in original.) 225 ILCS 65/15 (West 1992) (eff.
         January 1, 1990) (formerly Ill. Rev. Stat. 1989, ch. 111,
         par. 3515).
         Plaintiff finally passed the NCLEX in February 1994 and
received her license as a registered nurse in California on March
31, 1994.  Thereafter, she was licensed by endorsement in Indiana
in July 1994.  Plaintiff applied for licensure by endorsement in
Illinois pursuant to section 19 of the Act, which provides that
an applicant who is already licensed in another state will be
granted a license by endorsement without examination "whenever
the requirements of such state *** were at the date of license
substantially equal to the requirements then in force" in
Illinois. 225 ILCS 65/19 (West 1992). 
         In a letter dated March 23, 1995, the Department denied
plaintiff licensure by endorsement.  The letter stated:
                  "In order to be eligible for licensure on the basis of
         endorsement under the provisions of the Illinois Nursing Act
         of 1987, ch. 111, par. 3501 et seq.) [sic], the applicant
         must have been licensed under a statute which was
         substantially equal to the statute in force in Illinois at
         the date of licensure.  
                  At the date of your licensure in California, Section 15 of
         the Illinois Nursing Act of 1987 read in part that, '. . .
         any person in this State or any other jurisdiction of the
         United States who fails to pass an examination within three
         years to determine the fitness of such person to receive a
         license as a registered professional nurse or licensed
         practical nurse, shall thereafter be ineligible to take any
         further examination or examinations, or to be issued a
         license, until such time as such person shall submit to the
         Department full evidence as the Department may deem
         satisfactory, of the recompletion of the entire course of
         study . . .'
                  According to Department records, you failed to pass the
         national licensing examination within the required three (3)
         years.  The requirements in effect in your state of original
         licensure at the time of your licensure were not
         substantially equal to the Illinois licensure requirements
         in effect at that time.  Therefore, you are not eligible for
         licensure in Illinois on the basis of endorsement, and your
         application is denied."
         Plaintiff filed her complaint for administrative review of
the Department's final decision on April 26, 1995.  In the
complaint, plaintiff alleged that the three-year requirement was
not imposed until January 1, 1990, and that she had passed the
NCLEX within three years of the first imposition of the
requirement.  Plaintiff alleged that, therefore, she complied
with the requirements of the present statute and that the three-
year period could not have started to run prior to the enactment
of the 1990 amendment because retroactive enforcement of statutes
is prohibited. Plaintiff sought reversal of the Department's
denial of her application for licensure and asked the court to
order the Department to issue her a license.  
         In its response to plaintiff's complaint, the defendants
argued that plaintiff was not eligible for licensure by
endorsement because the California statute, under which plaintiff
was licensed, was not substantially equal to the statute in force
in Illinois at that time because the California statute imposed
no time limits on testing.  Defendants further contended that
plaintiff had not satisfied the three-year requirement imposed in
Illinois in that she had not passed the NCLEX until 10 years
after her initial attempt in 1984.  Defendants argued that it was
not applying the three-year requirement retroactively but was
merely applying the statutory requirements for licensure in
effect in 1995 to an application for a license filed in 1995. 
Defendants further argued that, even if the application of the
1990 amendment to plaintiff was deemed to be retroactive,
retroactive application was permissible here because the
amendment merely clarified a preexisting three-year requirement
that had been imposed since 1988 and did not impose a new
substantive requirement.  Defendants also argued that it had not
violated plaintiff's due process rights arising from her
constitutional right to pursue her chosen profession because it
was merely requiring that she meet the same statutory
requirements for licensure that all other applicants for
licensure in 1995 were required to meet. 
         Plaintiff filed a reply to defendants' response in which she
argued that the 1990 amendment imposing a three-year requirement
was substantive in nature and thus could not be applied
retroactively to her. 
         After a hearing, the trial court reversed the Department's
decision and ordered the Department to issue a license to
plaintiff.  The trial court found that the 1990 amendment
required, for the first time, that the NCLEX be passed within
three years.  The trial court held that the Department acted
improperly because it retroactively applied the 1990 amendment,
which the court characterized as affecting the substantive right
to pursue a profession.  The Department appealed.
         We reverse.
OPINION
         Defendants contend that this court's decision in Valdez v.
Zollar, 281 Ill. App. 3d 329, 665 N.E.2d 560 (1996), which was
issued during the pendency of this appeal, is directly applicable
to this case and mandates that plaintiff is not entitled to
licensure by endorsement.  We agree. 
         It was the traditional rule of construction that an
amendatory act will be construed as prospective unless express
language of the act clearly indicates that the legislature
intended a retroactive application; however, the presumption of
prospectivity did not apply to procedure or remedies. See First
of America Trust Co. v. Armstead, 171 Ill. 2d 282, 288, 664 N.E.2d 36 (1996). Under this analysis, courts struggled with the
determination of whether an amendment was procedural or
substantive. See Armstead, 171 Ill. 2d  at 288; see also Harraz v.
Snyder, 283 Ill. App. 3d 254, 259-60, 669 N.E.2d 911 (1996). 
However, the Illinois Supreme Court has criticized the
traditional approach and now favors a "vested rights" analysis,
in which the law that applies by its terms at the time of the
appeal is to be applied, unless doing so would interfere with a
vested right.  Harraz, 283 Ill. App. 3d at 261, citing Armstead,
171 Ill. 2d  at 289.
         In Valdez, the plaintiffs passed the NCLEX in 1993 after
failing earlier attempts in the 1980s and 1990s.  When the
plaintiffs originally sat for the exam, the version of the Act in
effect provided that if they failed the exam a total of six
times, they would be ineligible to retake the exam until they
recompleted their nursing studies. Valdez, 281 Ill. App. 3d at
331-32. When the plaintiffs sought Illinois licensure by
endorsement, defendants, the Department of Professional
Regulation and its Director, denied licensure based on the
January 1, 1990, amendment. In the trial courts, both plaintiffs
were granted licensure because the trial courts held that the
1990 amendment should apply only prospectively.  Valdez, 281 Ill.
App. 3d at 332. The defendants appealed and we affirmed.  
          On appeal, the plaintiffs argued that, because there had
been no time limitation on passing the exam when they originally
attempted the examination, the General Assembly was precluded
from retroactively imposing upon them the three-year time limit
in the current formulation of the Act. We agreed and explained
that, under the Illinois Supreme Court's decision in Armstead,
171 Ill. 2d 282, 664 N.E.2d 36, a retroactive change in the law
is one that takes away or impairs vested rights under existing
laws, or creates a new obligation, imposes a new duty, or
attaches a new disability in respect of transactions or
considerations already past. Valdez, 281 Ill. App. 3d at 332-33. 
We held that the 1990 amendment could not preclude additional
NCLEX attempts under its three-year time limit before March 1993,
because such a change would have created a new obligation and
imposed a new duty with respect to the past consideration of
previous exams.  We selected March 1993 as the date when the
three-year limit could first be enforced to bar pre-1990 NCLEX
applicants from future NCLEX attempts because March 1993 is when
the 1990 amendment would first begin to bar others who had
initially attempted NCLEX after the amendment's effective date --
those who initially tried NCLEX in February 1990. Valdez, 281
Ill. App. 3d at 331. We stated in pertinent part:
                  "Whether a particular expectation rises to the level of a
         vested right is not capable of precise definition, but it
         should be a complete and unconditional demand or exemption
         that may be equated with a property interest. [Citation.]
         For a particular expectation to be strong enough to render
         it complete and unconditional, we believe that a major
         factor must be the reasonable reliance that the expectation
         induces. [Citations.]  In this matter, the plaintiffs
         detrimentally relied on the statute as it existed before
         1990.  They lost the opportunity to attempt additional exams
         before their three-year time limit expired.  We find that
         the lack of any time restrictions for passing the NCLEX
         before 1990 was an unconditional exemption that rose to the
         level of a vested right.
                              * * *
                  *** [T]here is no vested right in the mere continuance of a
         law, and the legislature has an ongoing right to amend a
         statute. [Citation.] It is the prejudice from their
         reasonable reliance on the pre-1990 statute that grants the
         plaintiffs their rights in this matter. We believe that
         three years are an ample amount of time for pre-1990
         applicants to have discovered and adjusted to the 1990
         amendment, allowing them as many additional exam
         opportunities as they had before the amendment's adoption."
         Valdez, 281 Ill. App. 3d at 333-35.
         Valdez is instructive.  However, its facts are
distinguishable from the facts here.  In the instant case,
plaintiff attempted to pass the NCLEX four times within three
years between July 1984 to July 1987.  She next took the exam in
California in July 1993 and failed.  Plaintiff did not pass the
exam until February 1994.  Under Valdez, plaintiff had three
years from the effective date of the amendment, January 1990, to
discover and adjust to the time limit imposed by the amendment.
However, she failed to pass within this time period.       
Plaintiff argues that the three-year period begins to run from
the date of plaintiff's first attempt to pass the exam after the
January 1990 effective date of the amended Act.  This contention
controverts our decision in Valdez.  In our view, such an
application of the statute could allow pre-1990 applicants to
elect not to make a first attempt to pass the exam until more
than three years after January 1993 and still have three
additional years within which to qualify for licensure. 
Moreover, pre-1990 applicants would be in a better position than
post-1990 applicants because they would be allowed more time to
pass the exam.  Instead, we held in Valdez that the 1990
amendment could not be applied to preclude additional NCLEX
attempts by pre-1990 applicants before March 1993, because to do
so would have created a new obligation violative of vested rights
in consideration of previous exams. See Valdez, 281 Ill. App. 3d
at 333.  Accordingly, we chose March 1993 as the date by which we
believed that pre-1990 applicants could no longer reasonably rely
on the continuance of the law as it was before the 1990
amendment. See Valdez, 281 Ill. App. 3d at 335, citing Wineblad
v. Department of Registration & Education, 161 Ill. App. 3d 827,
515 N.E.2d 705 (1987) (reliance on former statute was misplaced
when plaintiffs had seven years of notice to the amended
provision).  In Valdez, we concluded that the plaintiffs
detrimentally relied on the statute as it had existed before 1990
because they had lost the opportunity to attempt additional exams
before their three-year time limit expired.  Valdez, 281 Ill.
App. 3d at 333. However, in the instant case, we cannot see how
plaintiff could have reasonably relied to her detriment on the
statute as it existed before 1990.  Unlike the plaintiffs in
Valdez, who passed the NCLEX in February 1993, plaintiff did not
pass the exam until February 1994, four years after the 1990
amendment became effective and one year after March 1993.  
         In accordance with our holding in Valdez, we believe
plaintiff had an ample amount of time to have discovered and
adjusted to the 1990 amendment.  "While a vested right is
difficult to define, it has frequently been defined to consist of
something more than a mere expectation, based upon an anticipated
continuance of the existing law, and it must have become a title,
legal or equitable, to the present or future enjoyment of *** the
demand, or a legal exception from a demand made by another."
Harraz v. Snyder, 283 Ill. App. 3d 254, 262, 669 N.E.2d 911
(1996).  We determine that there was no detrimental reliance by
plaintiff in being required to comply with the current provisions
of the Act, which have been in effect since 1990, and that
plaintiff had only a mere expectation in the continuance of the
Act that did not rise to the level of a vested right. See Martin
v. Department of Professional Regulation, 284 Ill. App. 3d 591,
596, 672 N.E.2d 267 (1996).   Thus, we hold that, under these
circumstances, the application of the 1990 amendment to
plaintiff's situation does not constitute retroactivity. 
Accordingly, plaintiff was not entitled to licensure in Illinois.
                                II
         Defendants also argue, as they argued in Valdez, that the
1990 amendment was not applied retroactively because the
amendment merely clarified existing law and did not substantively
change the statute.  Prior to the 1990 amendment, an applicant
was allowed six opportunities within three years to pass the
exam.  Defendants argue that, since the NCLEX was offered only
twice a year, it would be impossible to take the exam more than
six times in three years and, therefore, the 1990 amendment did
not substantively change the Act, but merely eliminated a
confusing and redundant portion of the earlier statute.  We
addressed this contention in Valdez and found it meritless. See
Valdez, 281 Ill. App. 3d at 338.
         For the foregoing reasons, the judgment of the circuit court
is reversed.
         Reversed.