{ "id": 4820251, "name": "EDWARD W. ARDT, Appellee, v. THE ILLINOIS DEPARTMENT OF PROFESSIONAL REGULATION, Appellant", "name_abbreviation": "Ardt v. Illinois Department of Professional Regulation", "decision_date": "1992-12-04", "docket_number": "No. 72440", "first_page": "138", "last_page": "160", "citations": [ { "type": "official", "cite": "154 Ill. 2d 138" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "83 Ill. 2d 502", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5474113 ], "pin_cites": [ { "page": "507" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/83/0502-01" ] }, { "cite": "332 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 364905 ], "weight": 3, "pin_cites": [ { "page": "7-8" }, { "page": "1882-83" }, { "page": "1541-42" } ], "opinion_index": 0, "case_paths": [ "/us/332/0001-01" ] }, { "cite": "269 U.S. 385", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 186255 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "391" }, { "page": "328" }, { "page": "127" } ], "opinion_index": 0, "case_paths": [ "/us/269/0385-01" ] }, { "cite": "496 U.S. 91", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12121937 ], "weight": 6, "pin_cites": [ { "page": "111" }, { "page": "101" }, { "page": "2293", "parenthetical": "Marshall, J., concurring, joined-by Brennan, J." } ], "opinion_index": 0, "case_paths": [ "/us/496/0091-01" ] }, { "cite": "433 U.S. 350", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6179472 ], "weight": 6, "pin_cites": [ { "page": "383" }, { "page": "835" }, { "page": "2709" }, { "page": "383-84" }, { "page": "835-36" }, { "page": "2709" } ], "opinion_index": 0, "case_paths": [ "/us/433/0350-01" ] }, { "cite": "425 U.S. 748", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182253 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/425/0748-01" ] }, { "cite": "455 U.S. 191", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11304478 ], "weight": 6, "pin_cites": [ { "page": "203" }, { "page": "74" }, { "page": "937" } ], "opinion_index": 0, "case_paths": [ "/us/455/0191-01" ] }, { "cite": "412 Ill. 145", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2665388 ], "pin_cites": [ { "page": "149" } ], "opinion_index": 0, "case_paths": [ "/ill/412/0145-01" ] }, { "cite": "76 Ill. 2d 53", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2984190 ], "pin_cites": [ { "page": "58-59" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/76/0053-01" ] }, { "cite": "672 S.W.2d 62", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9927459 ], "weight": 2, "pin_cites": [ { "page": "64" } ], "opinion_index": 0, "case_paths": [ "/sw2d/672/0062-01" ] }, { "cite": "286 U.S. 461", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3918739 ], "weight": 6, "pin_cites": [ { "page": "471" }, { "page": "1232" }, { "page": "621" } ], "opinion_index": 0, "case_paths": [ "/us/286/0461-01" ] }, { "cite": "67 N.E.2d 846", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "320 Mass. 29", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 498276 ], "opinion_index": 0, "case_paths": [ "/mass/320/0029-01" ] }, { "cite": "170 Cal. Rptr. 468", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1945, "opinion_index": 0 }, { "cite": "114 Cal. App. 3d 272", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 6043182 ], "year": 1945, "opinion_index": 0, "case_paths": [ "/cal-app-3d/114/0272-01" ] }, { "cite": "435 A.2d 747", "category": "reporters:state_regional", "reporter": "A.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "756" } ], "opinion_index": 0 }, { "cite": "291 Md. 390", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 2097243 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "291" } ], "opinion_index": 0, "case_paths": [ "/md/291/0390-01" ] }, { "cite": "67 Ill. 2d 529", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5813145 ], "opinion_index": 0, "case_paths": [ "/ill-2d/67/0529-01" ] }, { "cite": "29 DePaul L. Rev. 443", "category": "journals:journal", "reporter": "DePaul L. Rev.", "year": 1980, "pin_cites": [ { "page": "461" } ], "opinion_index": 0 }, { "cite": "34 Ill. 2d 567", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2880617 ], "pin_cites": [ { "page": "571" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/34/0567-01" ] }, { "cite": "25 Ill. App. 3d 879", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2703595 ], "pin_cites": [ { "page": "883" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/25/0879-01" ] }, { "cite": "66 Ill. App. 3d 947", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3319216 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/66/0947-01" ] }, { "cite": "139 Ill. App. 3d 611", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3568196 ], "weight": 3, "year": 1978, "pin_cites": [ { "page": "615" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/139/0611-01" ] }, { "cite": "211 Ill. App. 3d 475", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2529493 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "482" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/211/0475-01" ] }, { "cite": "216 Ill. App. 3d 453", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5287098 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-app-3d/216/0453-01" ] }, { "cite": "79 Ill. 2d 394", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3071257 ], "opinion_index": 0, "case_paths": [ "/ill-2d/79/0394-01" ] }, { "cite": "129 Ill. App. 3d 327", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3490048 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/129/0327-01" ] }, { "cite": "152 Ill. App. 3d 157", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 2958718 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/34/0983-01" ] }, { "cite": "346 Ill. 49", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5265091 ], "opinion_index": 0, "case_paths": [ "/ill/346/0049-01" ] }, { "cite": "109 Ill. 2d 202", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3127069 ], "weight": 3, "pin_cites": [ { "page": "210" }, { "page": "210" }, { "page": "210" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/109/0202-01" ] }, { "cite": "218 Ill. App. 3d 61", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498222 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/218/0061-01" ] }, { "cite": "433 U.S. 350", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6179472 ], "weight": 3, "pin_cites": [ { "page": "383" }, { "page": "835" }, { "page": "2709" } ], "opinion_index": 1, "case_paths": [ "/us/433/0350-01" ] } ], "analysis": { "cardinality": 1315, "char_count": 35115, "ocr_confidence": 0.785, "pagerank": { "raw": 3.4734007148025543e-07, "percentile": 0.8813612299404329 }, "sha256": "7fe88b589868f9bd091409b42e9292f4f864ca3f6b25c7a233b3509c6c294ae0", "simhash": "1:dbb8a7f32380c412", "word_count": 5617 }, "last_updated": "2023-07-14T21:56:08.023695+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "EDWARD W. ARDT, Appellee, v. THE ILLINOIS DEPARTMENT OF PROFESSIONAL REGULATION, Appellant." ], "opinions": [ { "text": "JUSTICE MORAN\ndelivered the opinion of the court:\nOn July 6, 1989, the Illinois Department of Professional Regulation (Department) filed a complaint against Edward Ardt, a practicing dentist, alleging that he had violated provisions of the Illinois Dental Practice Act (Act) (Ill. Rev. Stat. 1987, ch. 111, par. 2301 et seq.). Specifically, the Department charged that Ardt had violated sections 23 and 45 of the Act and the administrative regulations promulgated thereunder by using the terms \u201cfamily dentistry,\u201d \u201ctotal comfort,\u201d and \u201cquality\u201d in his advertising.\nFollowing an administrative hearing on the charges, Ardt was found to have violated the Act. The Department placed him on probation for two years. During that time, Ardt was to submit copies of all his advertisements to the Department and to publicly display his license, which was stamped to indicate that Ardt was on probation. He was also fined $500.\nArdt filed a complaint in the circuit court of Cook County for administrative review of the Department\u2019s decision. Among other things, Ardt challenged the validity of the advertising provisions under which he was charged, claiming that the provisions violated his first amendment right to free speech. Ardt also filed a petition for a stay of the Department\u2019s sanctions pending review. The circuit court granted the stay, despite the Department\u2019s argument that section 32 of the Act prohibits the suspension of any sanctions during the pendency of judicial review. The Department filed an interlocutory appeal seeking reversal of the stay order. That appeal was later consolidated with Ardt\u2019s appeal from the trial court\u2019s decision affirming the Department\u2019s determination on the merits.\nThe appellate court affirmed as modified to reflect its ruling that the unamended section of the administrative regulations which had unqualifiedly prohibited use of the term \u201cfamily dentistry\u201d in advertising was overly broad and thus unconstitutional (218 Ill. App. 3d 61). This court granted the Department\u2019s petition for leave to appeal (134 Ill. 2d Rules 315, 317).\nThe issues before us are whether: (1) the circuit court had the authority to enter a stay, and (2) certain advertising provisions of the Dental Practice Act are unconstitutional. We affirm.\nSection 32 of the Dental Practice Act\nThe Illinois Constitution of 1970 grants \u201coriginal jurisdiction of all justiciable matters\u201d to the circuit courts, and further states that the courts \u201cshall have such power to review administrative action as provided by law.\u201d (Ill. Const. 1970, art. VI, \u00a79.) Pursuant to this grant of authority, the General Assembly enacted the Administrative Review Law, a provision of which empowers the circuit court to stay decisions of the administrative agency pending final disposition of the case upon judicial review. (Ill. Rev. Stat. 1987, ch. 110, par. 3\u2014 lll(a)(l).) Section 32 of the Act provides that all administrative decisions of the Department are subject to judicial review according to provisions of the Administrative Review Law. (Ill. Rev. Stat. 1987, ch. 111, par. 2332.) However, section 32 makes the following exception:\n\u201cDuring the pendency and hearing of any and all judicial proceedings incident to such disciplinary action any sanctions imposed upon the accused by the Department shall remain in full force and effect.\u201d Ill. Rev. Stat. 1987, ch. 111, par. 2332.\nThe circuit court found section 32 constitutional. Nevertheless, the court held that the section applies unconditionally only to situations where a dentist\u2019s professional competence is in question. Finding that there was no potential harm to the public during the pendency of the appeal and that Dr. Ardt\u2019s practice would suffer if he were forced to display his probationary license during that time, the court granted a stay of the sanctions.\nUpon review, the appellate court determined that, despite the prohibition of section 32, the circuit court had the authority to grant a stay pending judicial review. The court reached its conclusion by reasoning that equity may be invoked to protect constitutionally guaranteed liberties, and Ardt had asserted a violation of his right to free speech. The court further concluded that, because section 32 restricts the equitable power of the court to issue a stay where appropriate, the statute improperly infringes on the power of the judiciary and consequently is unconstitutional.\nThe Department contends that the appellate court\u2019s decision misapprehends the basic character of judicial authority in the context of judicial review of an administrative decision. According to the Department, a court exercising special statutory jurisdiction must comply strictly with provisions of the empowering statute. In defense of its position, the Department cites Fredman, in which this court held that a court exercising special statutory jurisdiction \u201cis limited to the language of the act conferring it and the court has no powers from any other source.\u201d (Fredman Brothers Furniture Co. v. Department of Revenue (1985), 109 Ill. 2d 202, 210.) The Fredman court was concerned with a jurisdictional requirement for judicial review set out in the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 265 (now Ill. Rev. Stat. 1991, ch. 110, par. 3 \u2014 103)). Section 2 mandated that judicial review be sought within 35 days after service of the administrative agency\u2019s decision. The Fredman court held that, unless the statutory mode of procedure is strictly pursued, no jurisdiction to review administrative decisions is conferred on a court. In the case before us, we are concerned not with a condition precedent to a court\u2019s subject matter jurisdiction, but rather with the statutory prohibition of a court\u2019s exercise of its power to grant injunctive relief once the court\u2019s jurisdiction has attached. Thus, the decision in Fredman does not bear directly on the question before us.\nThe Department also cites Levy v. Industrial Comm\u2019n (1931), 346 Ill. 49, for the proposition that the authority of a circuit court exercising special jurisdiction to make any order must be found in the empowering statute. The issue in Levy, however, was whether the court had the power to modify a statutory writ in order to gain personal jurisdiction over the litigants. Inasmuch as it concerned the exercise of a court\u2019s powers prior to gaining jurisdiction, Levy is not applicable to the case at bar.\nThe Department also urges our consideration of People v. Byrnes (1975), 34 Ill. App. 3d 983. In Byrnes the appellate court found that the circuit court was without authority to dismiss criminal charges prior to trial. Instead, such authority rested at common law with the Attorney General until it passed by statute to the State\u2019s Attorney. In the present case we are concerned not with a power which the court did not possess at common law, but rather with a traditional power of the court: that of granting injunctive relief. Consequently, we find Byrnes inapposite to the issue under consideration.\nThe Department further argues for the applicability of the holding in People ex rel. Illinois Department of Human Rights v. Arlington Park Race Track Corp. (1984), 122 Ill. App. 3d 517. Arlington Park Race Track was concerned with the court\u2019s entry of a permanent injunction in a civil rights proceeding. In that case, the appellate court found that, under the applicable statute, the circuit court did not have subject matter jurisdiction to grant a permanent injunction during the pendency of the administrative proceeding. In the case before us, we are concerned with a stay granted after the termination of administrative proceedings, when the circuit court had subject matter jurisdiction.\nSubject matter jurisdiction, which is conferred on courts by the constitution or by statute (Fredman, 109 Ill. 2d at 210), refers to the power of courts to hear and decide the type of case presented (Faris v. Faris (1966), 35 Ill. 2d 305, 309). When a statute confers on a court special jurisdiction not arising out of the common law, that jurisdiction is limited to the language of the act conferring it. (Central Illinois Public Service Co. v. Industrial Comm\u2019n (1920), 293 Ill. 62, 65-66.) The court has no powers from any other source to hear the case, and if the mode of procedure prescribed by statute is not followed, no jurisdiction is conferred on the circuit court. Fredman, 109 Ill. 2d at 210.\nHowever, a court\u2019s inherent power is not synonymous with its subject matter jurisdiction. (Miller v. General Telephone Co. (1975), 29 Ill. App. 3d 848, 853.) A court exercising special jurisdiction retains its traditional equitable power. (Cahokia Sportservice, Inc. v. Liquor Control Comm\u2019n (1975), 32 Ill. App. 3d 801, 805.) This inherent equitable power, which is derived from the historic power of equity courts, can neither be taken away nor abridged by the legislature. 20 Am. Jur. 2d Courts \u00a778 (Supp. 1992).\nA stay or temporary restraining order is a type of injunction, which is distinctly an equitable remedy. (42 Am. Jur. 2d Injunctions \u00a7\u00a71, 2 (1969).) During the pendency of a case before it, a court has the inherent power to issue temporary restraining orders or preliminary injunctions. (Kraft v. Solon (1975), 32 Ill. App. 3d 557, 561.) Such injunctive relief is proper when the constitutionality of a statute is challenged. (Adams Apple Distributing Co. v. Zagel (1986), 152 Ill. App. 3d 157, 160.) We conclude that the circuit court had the inherent equitable power to issue a stay pending judicial review.\nThe Department argues, however, that if a court had the inherent power to issue a stay pending judicial review, it would not have been necessary to specifically provide for such a stay in the Administrative Review Law. However, the Department mistakes the intention with which the legislature enacted section 3 \u2014 111 of the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3 \u2014 111(a)(1)). The provision was intended to give the court broad judicial discretion to grant or deny a stay of an administrative decision without applying traditional standards applicable for the issuance of injunctions. Gorr v. Board of Fire & Police Commissioners (1984), 129 Ill. App. 3d 327.\nThe Department further argues that section 41 of the Medical Practice Act of 1987 (Ill. Rev. Stat. 1987, ch. 111, par. 4400 \u2014 41), which is identical to section 32, has consistently been interpreted to prohibit the entry of stays pending the judicial review of administrative decisions. The Department cites Stojanoff v. Department of Registration & Education (1980), 79 Ill. 2d 394, as a case in point. The plaintiff in Stojanoff was mistakenly, and through no wrongdoing of his own, granted a medical license despite his lack of the proper academic qualifications. Basing its decision upon the legislative intent to protect the public from unqualified physicians, this court upheld the continued revocation of the plaintiff\u2019s license pending remand to the administrative agency. Thus, in Stojanoff the issue was not whether the circuit court had the inherent authority to grant a stay of an administrative action pending judicial review, but rather whether the court properly refused to grant such a stay pending further administrative proceedings.\nThe Department further relies upon Bickham v. Selcke (1991), 216 Ill. App. 3d 453, Pundy v. Department of Professional Regulation (1991), 211 Ill. App. 3d 475, Blumstein v. Clayton (1985), 139 Ill. App. 3d 611, and Ming Kow Hah v. Stackler (1978), 66 Ill. App. 3d 947. The Ming Kow Hah court, as a matter of statutory construction, determined that the Medical Practice Act\u2019s prohibition of a stay pending judicial review prevailed over the section of the Administrative Review Act providing for such a stay (Ill. Rev. Stat. 1975, ch. 110, par. 275(l)(a) (now Ill. Rev. Stat. 1991, ch. 110, par. 3\u2014 111(a)(1))).\nMing Kow Hah did not address constitutional arguments. However, the constitutionality of the legislative provision was at issue in Blumstein, where the court found that the Medical Practice Act\u2019s prohibition of stays did not violate the plaintiff\u2019s right to due process or equal protection. The court reasoned that the plaintiff was given a full hearing, and that the State may regulate the medical profession due to its interest in protecting the health and welfare of the public. Blumstein, 139 Ill. App. 3d 611.\nThe Blumstein court also addressed the argument that the section of the Medical Practice Act prohibiting stays invades the inherent power of the judiciary by negating its power to balance equities and maintain the status quo between the parties. (Blumstein, 139 Ill. App. 3d at 615.) The court acknowledged that the prohibition of stays negates a traditional power of the court. However, the court determined that legislative limitation of that power was specifically authorized by the constitution, which provides that the courts \u201cshall have such power to review administrative action as provided by law.\u201d (Ill. Const. 1970, art. VI, \u00a79.) The Blumstein court interpreted section 9 to mean that courts have power to review administrative actions only as provided by statute. That is not our interpretation of the provision. Circuit courts have traditionally used mandamus, certiorari, injunction and other actions as a means of reviewing the decisions of administrative agencies. (Quinlan & Tyson, Inc. v. City of Evanston (1975), 25 Ill. App. 3d 879, 883.) The legislature enacted the Administrative Review Law in order to provide a simple single review from specified administrative decisions. (Chestnut v. Lodge (1966), 34 Ill. 2d 567, 571.) Other modes of review formerly available to agencies adopting the Administrative Review Law are no longer available. (Fins, The Illinois Law Revision Comm\u2019n, 29 DePaul L. Rev. 443, 461 (1980).) However, the common law writ of certiorari is employed for the review of administrative proceedings where no statutory provision is available for judicial review. (Smith v. Department of Public Aid (1977), 67 Ill. 2d 529.) Section 9 provides that the court may additionally gain subject matter jurisdiction through procedures specified by statute; it does not limit the court\u2019s traditional powers once it has gained jurisdiction.\nIn the most recent cases cited by the Department, the Bickham and Pundy courts found that section 41 of the Medical Practice Act did not violate the plaintiff physicians\u2019 due process rights, as sanctions were imposed only after a full hearing. The Pundy court also cited with approval Blumstein\u2019s finding that the section does not offend a physician\u2019s right to equal protection. Pundy, 211 Ill. App. 3d at 482.\nCourts in other jurisdictions have also found that similar statutory provisions prohibiting stays pending judicial review do not violate due process or equal protection. (See Commission on Medical Discipline v. Stillman (1981), 291 Md. 390, 435 A.2d 747; Board of Medical Quality Assurance v. Superior Court (1980), 114 Cal. App. 3d 272, 170 Cal. Rptr. 468; Flynn v. Board of Registration in Optometry (1945), 320 Mass. 29, 67 N.E.2d 846.) In Stillman, the court additionally held that, because reasonable judicial review of administrative decisions was provided for by statute, the prohibition of stays did not infringe upon the judiciary\u2019s inherent power to review administrative actions for arbitrariness, illegality, capriciousness and unreasonableness. The court pointed out, however, that physicians who were merely placed on probation were not precluded from obtaining a stay under the relevant statute. Stillman, 291 Md. at 291, 435 A.2d at 756.\nThe United States Supreme Court examined the effect on due process of a statutory prohibition of stays in Porter v. Investors Syndicate (1932), 286 U.S. 461, 76 L. Ed. 1226, 52 S. Ct. 617. In that case, the Court overcame due process concerns by construing a Montana statute in such a way as to allow a court to stay revocation of a permit pending judicial review. The Court stated that \u201cwhere either the plain provisions of the statute [citation] or the decisions of the state court interpreting the act [citation] precludes [sic] a supersedeas or stay until the legislative process is completed by the final action of the reviewing court, due process is not afforded ***.\u201d Porter, 286 U.S. at 471, 76 L. Ed. at 1232, 52 S. Ct. at 621.\nAddressing State constitutional concerns, the court in Smothers v. Lewis (Ky. 1984), 672 S.W.2d 62, held unconstitutional a statute forbidding courts to stay, pending appeal, the revocation or suspension of liquor licenses by the State alcoholic beverage control board. The Smothers court stated that, in addition to judicial and rulemaking powers vested in the court system by the State constitution, the courts have inherent powers to do that which is reasonably necessary within the scope of their jurisdiction. The court concluded:\n\u201cOnce the administrative action has ended and the right to appeal arises the legislature is void of any right to control a subsequent appellate judicial proceeding. The judicial rules have come into play and have preempted the field.\u201d (Smothers, 672 S.W.2d at 64.)\nWe agree with the Smothers court that a court of review has the inherent power to issue injunctions. We further agree that to allow a court the ability to right a possible wrong by granting an appeal while denying it the power to defer imposition of a penalty attached to that wrong would be to deny the court its inherent right to make effective its constitutional grant of power.\nThe Smothers court based its conclusions in large part upon its State constitutional provision declaring the separation of powers. Article II, section 1, of the Illinois Constitution of 1970 states: \u201cThe legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another.\u201d (Ill. Const. 1970, art. II, \u00a71.) This court has recognized that the doctrine of separation of powers does not forbid every exercise of one branch\u2019s functions by another. Nevertheless, each branch of government must be kept free from the coercive influence of the other branches. (Strukoff v. Strukoff (1979), 76 Ill. 2d 53, 58-59.) The General Assembly is expressly prohibited from exercising judicial power. It has power to enact laws governing judicial practice only where such laws do not infringe upon the inherent powers of the judiciary. (Agran v. Checker Taxi Co. (1952), 412 Ill. 145, 149.) We have determined that the power to grant injunctive relief in cases over which it has jurisdiction is inherent in a circuit court. Consequently, we hold, to the extent that it restricts the inherent power of the court to issue a stay where appropriate, that section 32 of the Dental Practice Act is unconstitutional.\nSection 45 of the Dental Practice Act\nDr. Ardt contends that several provisions of the Act contravene his first amendment right to free commercial speech. Under section 45 of the Act, a dentist may advertise certain information \u201cwhich a reasonable person might regard as relevant in determining whether to seek the dentist\u2019s services.\u201d (Ill. Rev. Stat. 1987, ch. 111, par. 2345(h).) However, it is unlawful for the dentist:\n\u201c(1) To use testimonials or claims of superior quality of care to entice the public;\n(2) To advertise in any way to practice dentistry without causing pain;\n*** Nor shall the dentist use statements which contain false, fraudulent, deceptive or misleading material or guarantees of success ***.\u201d Ill. Rev. Stat. 1987, ch. 111, par. 2345.\nAlso in effect during the time at which Ardt advertised in an allegedly improper manner was an administrative regulation promulgated pursuant to the Act, which stated:\n\u201cAdvertising may not use language suggesting a dental specialty which does not exist under the Dental Practice Act. Example: Family Dentistry, Family Practice.\u201d (68 Ill. Adm. Code \u00a71220.421(a)(3) (Supp. 1988).)\nThat section of the regulation was later changed to read as follows:\n\u201cAdvertising shall not use language suggesting a dental specialty which is not specified in Section 1220.320 of this Part unless it contains the disclaimer required in subsection (g), above [licensed to practice as a general dentist in Illinois], Examples of language requiring disclaimer: family dentistry ***.\u201d 68 Ill. Adm. Code \u00a71220.421(h) (1991).\nThe appellate court held that the previous administrative regulation, which was in effect when Ardt publicized his allegedly improper advertising, was an unconstitutional abridgement of Ardt\u2019s freedom of speech to the extent that it categorically barred use of the term \u201cfamily dentistry.\u201d The court found that the term was only potentially misleading, as it could apply simply to the dentist\u2019s client base rather than to a dental specialty. We agree with the appellate court that such a total ban of the term is unconstitutional. (See In re R.M.J. (1982), 455 U.S. 191, 71 L. Ed. 2d 64, 102 S. Ct. 929 (potentially misleading terms may be acceptable if presented in a way that is not deceptive).) We agree also that the 1989 regulation should not be given retroactive effect. The Department does not contest the appellate court\u2019s conclusion. Thus, the only remaining question is whether the Department\u2019s imposition of sanctions for Ardt\u2019s use of the terms \u201cquality dentistry\u201d and \u201ctotal comfort\u201d was an unconstitutional violation of Ardt\u2019s right to free commercial speech.\nThe United States Supreme Court has held that commercial speech, like other varieties of speech, is protected under the first amendment. (Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976), 425 U.S. 748, 48 L. Ed. 2d 346, 96 S. Ct. 1817.) The Court has summarized the commercial speech doctrine as follows:\n\u201cTruthful advertising related to lawful activities is entitled to the protections of the First Amendment. But when the particular content or method of the advertising suggests that it is inherently misleading or when experience has proved that in fact such advertising is subject to abuse, the States may impose appropriate restrictions. Misleading advertising may be prohibited entirely. But the States may not place an absolute prohibition on certain types of potentially misleading information, e.g., a listing of areas of practice, if the information also may be presented in a way that is not deceptive.\u201d (In re R.M.J., 455 U.S. at 203, 71 L. Ed. 2d at 74, 102 S. Ct. at 937.)\nThus, a State may not completely suppress the dissemination of truthful information about lawful activity. Nevertheless, commercial speech may be regulated by the government, and advertising that is false, deceptive or misleading is subject to restraint. (Bates v. State Bar (1977), 433 U.S. 350, 383, 53 L. Ed. 2d 810, 835, 97 S. Ct. 2691, 2709.) The Bates Court noted, without deciding, that \u201cadvertising claims as to the quality of services *** are not susceptible of measurement or verification; accordingly, such claims may be so likely to be misleading as to warrant restriction.\u201d Bates, 433 U.S. at 383-84, 53 L. Ed. 2d at 835-36, 97 S. Ct. at 2709.\nSection 45 of the Act states in part that it is unlawful for a licensed dentist \u201c[t]o use testimonials or claims of superior quality of care to entice the public.\u201d (Ill. Rev. Stat. 1987, ch. 111, par. 2345(1).) Ardt\u2019s advertisements were printed in a telephone directory, on his business cards, and on the door of his office. Dr. Ardt states that it is unclear which words in his advertising implied \u201csuperior quality of care.\u201d However, Ardt\u2019s telephone directory advertisement announced that he provided \u201cquality dentistry for all family needs and all ages.\u201d We believe that the expression \u201cquality dentistry\u201d implies superior quality and is inherently misleading, as it cannot be measured or tested empirically. All dentists must meet prescribed standards in order to be licensed. Whether the quality of any one dentist\u2019s services is superior to that of his colleagues is a matter of opinion for the dentist\u2019s patients to decide after treatment. Prior to treatment they should not be misled by advertising which might prove to make an empty claim. For the above reasons, we agree with the appellate court that the Department\u2019s prohibition of the term \u201cquality dentistry\u201d is constitutional and does not violate Ardt\u2019s first amendment right to free commercial speech.\nSection 45 further prohibits the dentist from advertising \u201cin any way to practice dentistry without causing pain.\u201d (Ill. Rev. Stat. 1987, ch. 111, par. 2345(2).) Dr. Ardt\u2019s business card stated: \u201cWe use analgesic techniques to provide total comfort for the relief of the anxieties and fears many patients have of dental treatment.\u201d His telephone directory advertisements promised: \u201cTotal comfort available with anesthetic techniques.\u201d Although Ardt argues that \u201ctotal comfort\u201d is not synonymous with lack of pain, nevertheless analgesic and anesthetic techniques are employed exclusively for the relief or blocking of pain. Blakiston\u2019s Gould Medical Dictionary 70, 75 (4th ed. 1979), provides the following definitions:\n\u201canalgesic *** 1. Relieving pain.\u201d\n\u201canesthetic *** 1. Causing anesthesia. 2. Insensible to touch, pain, or other stimulation.\u201d\nIn the context of Ardt\u2019s advertising, \u201ctotal comfort\u201d can be equated with painless dental procedures. A patient may hope that his pain will be relieved or blocked by dental techniques. However, to promise \u201ctotal comfort\u201d implies that the patient will experience no pain or even discomfort. Such an inducement is misleading in itself.\nDr. Ardt attempts to analogize his case with that of the attorney in Peel v. Attorney Registration & Disciplinary Comm\u2019n (1990), 496 U.S. 91, 110 L. Ed. 2d 83, 110 S. Ct. 2281. Peel, however, concerned a letterhead which stated that the attorney was \u201cCertified [as a] Civil Trial Specialist By the National Board of Trial Advocacy.\u201d Finding that the information provided was true, verifiable, and only potentially misleading, the Supreme Court held that a State may not completely ban statements unless they are actually or inherently misleading. (Peel, 496 U.S. at 111, 110 L. Ed. 2d at 101, 110 S. Ct. at 2293 (Marshall, J., concurring, joined-by Brennan, J.).) Having found Dr. Ardt\u2019s use of the term \u201ctotal comfort\u201d to be inherently misleading and thus capable of State regulation, we hold that Ardt\u2019s rights were not violated by the Department\u2019s prohibition of the term in his advertising.\nFinally, Dr. Ardt argues that section 45 of the Act and section 1220.421 of title 68 of the Administrative Code are void for vagueness. According to Ardt, two broadly written portions of section 45 fail to adequately inform the dentist of which advertising is permissible and which advertising is prohibited.\nSection 45 provides that dentists may advertise, inter alia:\n\u201c(a) The dental services available;\n* * *\n(h) Other information about the dentist, dentist\u2019s practice or the types of dental services which the dentist offers to perform which a reasonable person might regard as relevant in determining whether to seek the dentist\u2019s services.\u201d (Ill. Rev. Stat. 1987, ch. 111, pars. 2345(a), (h).)\nThe section also states:\n\u201cIt is unlawful for any dentist licensed under this Act:\n(1) To use testimonials or claims of superior quality of care to entice the public;\n* * *\nThis Act does not authorize the advertising of dental services when the offeror of such services is not a dentist. Nor shall the dentist use statements which contain false, fraudulent, deceptive or misleading material or guarantees of success, statements which play upon the vanity or fears of the public, or statements which promote or produce unfair competition.\u201d (Ill. Rev. Stat. 1987, ch. 111, par. 2345.)\nArdt asserts that these clauses are confusing, contradictory, indefinite and uncertain. Ardt contends that, because section 45 permits and forbids doing acts in terms so vague that a person of ordinary intelligence must guess at their meaning, the section denies due process of law.\nIn the course of its examination of the constitutionality of statutes, the United States Supreme Court has evolved a void-for-vagueness doctrine. Under this doctrine, the Court has strictly prohibited statutes which burden speech in terms that are so vague that they might include protected speech in their prohibition or leave an individual without clear guidance as to which kind of speech can be punished. (J. Nowak, R. Rotunda & J. Young, Constitutional Law 872 (2d ed. 1983).) As a matter of due process, a law is void if it is so vague that persons \u201cof common intelligence must necessarily guess at its meaning and differ as to its application.\u201d (Connolly v. General Construction Co. (1926), 269 U.S. 385, 391, 70 L. Ed. 322, 328, 46 S. Ct. 126, 127; L. Tribe, American Constitutional Law \u00a712 \u2014 31, at 1033 (2d ed. 1988).) We could not sustain section 45 if we agreed with Ardt\u2019s contention that persons of ordinary intelligence would be unable to understand what it allows and what it prohibits. But we do not agree.\nThe prohibiting clause cited by Ardt dictates that the dentist shall not use \u201cfalse, fraudulent, deceptive or misleading material.\u201d We believe that the terms \u201cfalse,\u201d \u201cfraudulent,\u201d and \u201cdeceptive\u201d are readily understandable by a person of ordinary intelligence. Examples of misleading advertising are listed in previous clauses of section 45, which proscribe claims of superior quality of care and claims of practicing dentistry without pain. We do not believe that those clauses could have been drafted more clearly. (See United States v. Petrillo (1947), 332 U.S. 1, 7-8, 91 L. Ed. 1877, 1882-83, 67 S. Ct. 1538, 1541-42.) It was specifically for violating those instances of prohibited advertising that Ardt was charged.\nThis court has previously held that a statute does not violate the due process clauses of the United States or the Illinois Constitution, on grounds of vagueness, if it is explicit enough to serve as a guide to those who must comply with it. (Chastek v. Anderson (1981), 83 Ill. 2d 502, 507.) In Chastek, the court found that the statute\u2019s use of the term \u201cunprofessional conduct\u201d was found to be sufficiently clear in itself, and that there was no need to catalogue all the possible types of professional misconduct. We find that section 45, and the regulations promulgated in connection with it, give a dentist sufficient guidance so that he can avoid advertising prohibited information. Consequently, we hold that section 45 is not unconstitutionally vague.\nFor the above reasons, we affirm the judgment of the appellate court.\nAffirmed.", "type": "majority", "author": "JUSTICE MORAN" }, { "text": "JUSTICE HEIPLE,\nconcurring in part and dissenting in part:\nI agree with the majority\u2019s conclusion that trial courts may issue stays involving the Dental Practice Act in appropriate circumstances. The majority, however, in approving the prohibition of dental advertisements using the terms \u201cquality dentistry\u201d and \u201ctotal comfort,\u201d has unnecessarily and unconstitutionally limited an individual\u2019s right to free commercial speech.\nThe relevant facts are that Dr. Edward Ardt, a practicing dentist, advertised in various ways stating, inter alia, \u201cquality dentistry for all family needs and all ages\u201d and \u201cTotal comfort available with anesthetic techniques.\u201d Section 45 of the Dental Practice Act states that it is unlawful for a dentist to advertise using misleading statements. Specifically, this section prohibits a dentist from claiming superior quality of care and from advertising the ability to practice dentistry -without causing pain. (Ill. Rev. Stat. 1987, ch. 111, par. 2345.) The majority, focusing on the terms \u201cquality dentistry\u201d and \u201ctotal comfort\u201d concludes that advertising with such terms is misleading and thus may be prohibited.\nCommercial speech, while protected under the first amendment, may be restrained if it is of a false, deceptive or misleading character. (Bates v. State Bar (1977), 433 U.S. 350, 383, 53 L. Ed. 2d 810, 835, 97 S. Ct. 2691, 2709.) Thus, the focus of the present case centers on whether advertising \u201cquality dentistry\u201d and \u201ctotal comfort\u201d is false, deceptive or misleading to the general public.\nThe term \u201cquality dentistry\u201d carries the obvious implication that the dental work is superior. The term \u201ctotal comfort\u201d carri\u00e9s the implication that the treatment is free of pain.\nUp to this moment, what has been totally overlooked in these proceedings is that Dr. Ardt\u2019s claims may be true. Isn\u2019t it possible that Dr. Ardt\u2019s dental services may be superior? Isn\u2019t it also possible that \u201cwith anesthetic techniques,\u201d his dental services may be performed without pain? My question to the Illinois Department of Professional Regulation and to the majority of this court is a simple one. If Dr. Ardt is, in fact, offering quality dentistry that is free of pain, how can his claim be misleading? The decision in this case should go beyond a mere analysis of words. It should focus on the facts. That has not been done. Advertising is not misleading if it is true. Truth is a defense in libel and slander cases. Should it not also be a defense in a claimed case of misleading advertising?\nThe restrictions on dental advertising in this and similar cases are claimed to be justified on the grounds that the public needs this type of protection and that without it they will be taken advantage of, conned, gulled, and lured into the offices of unscrupulous dentists. The plain and unvarnished truth of the matter is that these restrictions and sanctions are in place as a service to the dental profession to limit and restrict competition among dentists. All else is window dressing. Beyond that, the law presumes that the general public are a bunch of simple minded peasants who, if they can read and write, are too dumb to protect themselves from the wiles of a dentist who offers quality care and pain-free treatment. While there are limits, of course, I attribute a higher degree of sophistication to my fellow countrymen than this case implies.\nDr. Ardt has been a practicing dentist for over a quarter of a century. He is a graduate of an approved college of dentistry. He long ago passed his state licensing examination and met all state requirements for practicing dentistry in Illinois. He is not being sanctioned in this case for dental malpractice. He is being sanctioned for misleading advertising. That has never been established.\nAccordingly, I respectfully dissent from that portion of the majority opinion which concludes without proof that Dr. Ardt engaged in misleading advertising.\nJUSTICE BILANDIC joins in this partial concurrence and partial dissent.", "type": "concurring-in-part-and-dissenting-in-part", "author": "JUSTICE HEIPLE," } ], "attorneys": [ "Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Rita M. Novak and Ann Plunkett-Sheldon, Assistant Attorneys General, of Chicago, of counsel), for appellant.", "James D. Goodman, of Chicago, for appellee." ], "corrections": "", "head_matter": "(No. 72440.\nEDWARD W. ARDT, Appellee, v. THE ILLINOIS DEPARTMENT OF PROFESSIONAL REGULATION, Appellant.\nOpinion filed December 4, 1992.\nRehearing denied February 1, 1993.\nHEIPLE, J., joined by BILANDIC, J., concurring in part and dissenting in part.\nRoland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Rita M. Novak and Ann Plunkett-Sheldon, Assistant Attorneys General, of Chicago, of counsel), for appellant.\nJames D. Goodman, of Chicago, for appellee." }, "file_name": "0138-01", "first_page_order": 148, "last_page_order": 170 }