Grimm v. Calica , 2017 IL 120105 ( 2017 )

2017 IL 120105
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 120105)
CHRISTINE GRIMM, Appellee, v. RICHARD H. CALICA, as Director of Children
and Family Services, Appellant.
Opinion filed February 17, 2017.
JUSTICE THEIS delivered the judgment of the court, with opinion.
Justices Freeman, Kilbride, Garman, and Burke concurred in the judgment and
opinion.
Justice Thomas dissented, with opinion, joined by Chief Justice Karmeier.
OPINION
¶1 The central issue in this case is one of jurisdiction—specifically, so-called
special statutory jurisdiction under the Administrative Review Law. See 735 ILCS
5/3-101 et seq. (West 2012). Section 3-103 of that statute states that a complaint for
judicial review of an administrative agency decision must be filed “within 35 days
from the date that a copy of the decision sought to be reviewed was served upon the
party affected by the decision.” 735 ILCS 5/3-103 (West 2012). Here, plaintiff
Christine Grimm filed such a complaint in Lake County circuit court 36 days after
the date of a decision against her by the Department of Children and Family
Services (Department). Grimm conceded that her complaint was untimely but
insisted that the jurisdictional bar of section 3-103 could be lifted because the
Department’s decision was misleading and, consequently, violated due process.
The trial and appellate courts agreed. See 2015 IL App (2d) 140820.
¶2 For the reasons that follow, we affirm.
¶3 BACKGROUND
¶4 In 2012, the Department investigated and indicated a finding of child abuse
against Grimm after her husband told the McHenry County sheriff’s office that she
had struck their six-year-old son twice with a wooden spoon over his clothes for
refusing to eat peaches for breakfast. The husband spoke to deputy sheriffs a day
after the incident, which was also a day after Grimm moved out of the marital
residence. According to the deputy sheriffs who examined the child, there was a
welt and a bruise on the child’s left buttock. Grimm, a teacher, claimed that the
report was inaccurate and requested its expunction from the State Central Register.
In 2013, an administrative law judge conducted a hearing and issued a written
opinion, recommending that Grimm’s request should be denied.
¶5 Nine days later, the Department issued its decision in a letter signed by its
director, Richard Calica. The letter, dated July 30, 2013, was addressed to the
attorney who had represented Grimm at the hearing and indicated that it was sent
via certified mail. In the letter, Calica stated that the administrative law judge
determined that the indicated finding was supported by a preponderance of the
evidence. Calica adopted the administrative law judge’s findings of fact and
conclusions of law and concurred in the administrative law judge’s
recommendation that Grimm’s request should be denied. Calica concluded:
“This represents the final administrative decision of the [Department]. If you
disagree with any part of it, you may seek judicial review under the provisions
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of the Administrative Review Law, 735 ILCS 5/3-101 et seq. (West 2010),
within 35 days of the date this decision was served on you.”
The administrative law judge’s opinion was enclosed with the letter.
¶6 On September 4, 2013, 36 days after the date of the letter, Grimm filed her
complaint for judicial review of the Department’s decision. Grimm alleged that the
Department “issued a final and appealable order” on July 23 1 but stated that the
Department’s decision “was issued” to her on July 30. She further alleged that the
complaint was filed within 35 days of the decision being served on her. On the
merits, Grimm claimed that the administrative law judge’s conclusions of law were
erroneous and against the manifest weight of the evidence, so the Department’s
decision should be reversed.
¶7 The Department filed a motion to dismiss for lack of jurisdiction under section
2-619(a)(5) of the Civil Practice Law (735 ILCS 5/2-619(a)(5) (West 2012))
because Grimm’s complaint was untimely. 2 The Department stated that it served
Grimm with its final decision on July 30, when it mailed the letter to her attorney
via certified mail. As proof of the date that the letter was mailed, the Department
provided an affidavit from one of its staff members, stating that she had mailed the
letter to Grimm’s attorney on July 30, as well as a certified mail receipt with a July
30 postmark.
¶8 Grimm responded that, while the Department mailed its decision on July 30,
2013, her attorney received it no earlier than July 31, 2013. 3 Grimm added that she
did not receive the decision until August 12 or 13, 2013. She argued that mailing
1
It is unclear why Grimm referred to that date. Our review of the record has not shown
any relevant event on July 23, 2013. The administrative law judge’s opinion was dated July
21, and the Department’s decision was dated July 30.
2
Shortly after the motion to dismiss was filed, Calica resigned his position, but the
caption in this case continued to refer to him. In the opening brief of this appeal, the
Attorney General states that Calica has been replaced by George Sheldon, who “should
now replace Calica in the case’s caption.” To avoid any confusion over names, we will
attribute the Attorney General’s arguments to the Department.
3
In her response, Grimm seemed to believe that the administrative law judge’s opinion
was the Department’s “ruling” and that the Department’s decision was merely a “cover
letter.”
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the decision to her attorney was inadequate because section 3-103 requires service
on the affected party. She further argued that, under Coleman v. Retirement Board
of the Firemen’s Annuity & Benefit Fund, 392 Ill. App. 3d 380, 386 (2009), her
complaint was not untimely because the Department did not fairly and adequately
inform her of its decision and, thus, violated due process. Specifically, Grimm
insisted that the phrase “within 35 days of the date this decision was served on you”
was confusing and that the Department should have said simply that the complaint
was due within 35 days of the date of the letter. According to Grimm, basic fairness
required the trial court to exercise jurisdiction, noting that the attorney who
received the decision and relayed it to her was her original attorney and that she
hired another attorney “after the Labor Day weekend.” 4
¶9 The Department replied that the Administrative Procedure Act required notice
of its decisions to affected parties or their agents. See 5 ILCS 100/10-50(a) (West
2012). The Department disputed Grimm’s contention that its decision was unclear
about the service date.
¶ 10 The trial court denied the Department’s motion to dismiss. The court observed
that because of Labor Day, Grimm’s complaint “was filed 24 hours after the time in
which the statute provides for [its] filing.” According to the trial court, “the
interests of justice” required that Grimm should be allowed to obtain review of the
Department’s decision: “While to many citizens a finding by the Department is an
embarrassment, to this citizen such a finding greatly impacts her ability to be
gainfully employed as a teacher.” After Grimm filed the administrative record and
the parties filed briefs, the trial court ruled that the Department’s decision was
“clearly erroneous” and reversed it. The Department appealed.
¶ 11 The appellate court affirmed, holding that Calica’s letter was not “well
calculated to apprise” Grimm that the 35-day period began on July 30, 2013, when
the letter was mailed. 2015 IL App (2d) 140820, ¶ 14. The appellate court stated
that “nothing within what the Department sent showed a date of mailing.” Id. ¶ 18.
Although Calica’s letter contained a date, that date “appears as nothing more than
the date of the letter,” not the date of its mailing. (Emphasis in original.) Id. ¶ 19.
The appellate court added that, even if the date of the letter “could be taken as a
4
In 2013, Labor Day was September 2.
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mailing date, nothing in the letter indicated that it was also the service date.” Id.
The appellate court continued:
“[W]e find the idea of a service date that is known only to the one doing the
serving to be troublingly counterintuitive. The serving of a document is a
formal act of giving notice. A provision that deems the mailing date of a notice
to be the service date thus means that the notice-giver starts out with a burden of
confusion to overcome: that of conveying that the law deems notice to have
been given before it is actually received. The notice-giver can overcome that
by, for instance, explicitly stating the deemed service date. The Department’s
notice format does far less, in that it does not even clearly show the mailing
date. A potential administrative-review plaintiff thus faces not only the
ordinary challenge of knowing the law regarding service but also the second
challenge of learning the mailing date.” Id. ¶ 20.
¶ 12 The appellate court referred to Illinois Supreme Court Rule 303 (eff. Jan. 1,
2015), which gives an appellant 30 days to file a notice of appeal but also an
additional 30 days if there is a “reasonable excuse.” 2015 IL App (2d) 140820,
¶ 22. The Administrative Review Law does not have such a “backstop,” so any
confusion created by an agency’s notice becomes “a stumbling block in a setting in
which a potential administrative-review plaintiff can afford few missteps.” Id. The
appellate court noted that the Department here could have removed any confusion
by informing Grimm that the mailing date, as well as the service date, was the date
of the letter. Id. Calica’s letter, however, “was not in a format that would be chosen
by someone genuinely trying to convey the time limit for filing an
administrative-review complaint.” Id. Because the letter did not afford Grimm due
process, the trial court did not err in declining to hold plaintiff to the 35-day
deadline for a complaint under the Law. Id. ¶ 23. The trial court was permitted to
reach the merits, and the Department never challenged the court’s ruling in that
regard. Id.
¶ 13 This court allowed the Department’s petition for leave to appeal. Ill. S. Ct. R.
315(a) (eff. Jan. 1, 2015).
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¶ 14 ANALYSIS
¶ 15 This appeal comes before us after the appellate court affirmed the trial court’s
decision to deny the Department’s motion to dismiss Grimm’s complaint for
judicial review for lack of jurisdiction. The Illinois Constitution provides that final
circuit court judgments are appealable as a matter of right (Ill. Const. 1970, art. VI,
§ 6), but final administrative agency decisions are appealable only “as provided by
law” (Ill. Const. 1970, art. VI, § 9). In reviewing an administrative agency’s
decision, a court exercises special statutory jurisdiction, which is limited by the
language of the statute conferring it. Beggs v. Board of Education of Murphysboro
Community Unit School District No. 186, 2016 IL 120236, ¶ 45. A party seeking
judicial review of such a decision must comply strictly with the requirements of the
Administrative Review Law. Ultsch v. Illinois Municipal Retirement Fund, 226 Ill.
2d 169, 178 (2007); see also Rodriguez v. Sheriff’s Merit Comm’n, 218 Ill. 2d 342,
349-50 (2006) (“The Administrative Review Law was an innovation and a
departure from the common law, and the procedures established therein must be
followed.”). Failure to do so robs the court of jurisdiction. Rodriguez, 218 Ill. 2d at
350.
¶ 16 Section 3-102 of the Administrative Review Law provides that a party to a
proceeding before an administrative agency cannot obtain judicial review of an
adverse agency decision except “within the time and in the manner” set forth
elsewhere in the statute. 735 ILCS 5/3-102 (West 2012). Section 3-103 provides
the time, stating that an action for judicial review must be commenced by filing a
complaint and issuing summons “within 35 days from the date that a copy of the
decision sought to be reviewed was served upon the party affected by the decision.”
735 ILCS 5/3-103 (West 2012); Fredman Brothers Furniture Co. v. Department of
Revenue, 109 Ill. 2d 202, 211 (1985) (“judicial review of the administrative
decision is barred if the complaint is not filed within the time specified”). Section
3-103 further provides that “a decision shall be deemed to have been served either
when a copy of the decision is personally delivered or when a copy of the decision
is deposited in the United States mail, in a sealed envelope or package, with postage
prepaid, addressed to the party affected by the decision at his or her last known
residence or place of business.” 735 ILCS 5/3-103 (West 2012); see also Nudell v.
Forest Preserve District, 207 Ill. 2d 409, 424 (2003) (stating that section 3-103
means “when deposited,” not “when received”); Cox v. Board of Fire & Police
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Commissioners, 96 Ill. 2d 399, 403 (1983) (“the decision was served when
deposited in the United States mail”); West-Howard v. Department of Children &
Family Services, 2013 IL App (4th) 120782, ¶ 17; Board of Education of St.
Charles Community Unit School District No. 303 v. Adelman, 137 Ill. App. 3d 965,
969 (1985).
¶ 17 Section 10-50(a) of the Illinois Administrative Procedure Act requires agencies
to notify parties or their agents “personally or by registered or certified mail of any
decision or order.” 5 ILCS 100/10-50(a) (West 2012); see also 89 Ill. Adm. Code
337.220 (2002); 89 Ill. Adm. Code 337.230 (1995) (stating that the Department’s
Director must send final administrative decisions to either the person who
challenged an earlier finding or that person’s representative). Thus, mailing a
decision to a party’s attorney starts the jurisdictional clock.
¶ 18 Here, the 35-day period began when the Department mailed Calica’s letter to
Grimm’s original attorney and expired on September 3, 2013, a day before Grimm
filed her complaint. The trial court excused Grimm’s tardiness “in the interests of
justice,” but that rationale was unavailable because “equitable tolling is
inconsistent with the text of the [Administrative] Review Law.” Van Milligen v.
Department of Employment Security, 373 Ill. App. 3d 532, 543 (2007). The
appellate court took a more principled approach, concluding that Calica’s letter was
misleading because it failed to indicate that its service date was its mailing date and
violated due process. The only issue before us is whether Grimm received the
process that she was due under the constitution. On that issue, our review is
de novo. See Village of Vernon Hills v. Heelan, 2015 IL 118170, ¶ 31.
¶ 19 The Department’s argument before us is twofold. First, the Department
contends that due process does not require judicial review of administrative agency
decisions and also does not require agencies to inform parties affected by those
decisions that they are subject to judicial review by statute or that such review is
subject to a 35-day time limit. Thus, according to the Department, due process does
not require an agency to inform a party when its decision was mailed and
served—actions that begin the 35-day period under section 3-103. Second, the
Department contends that even if due process requires some information from an
agency, Calica’s letter conveyed that information. The Department asserts that the
letter was not misleading, but rather clear on its face, about its mailing date.
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¶ 20 Grimm responds by essentially tracking the appellate court’s reasoning.
According to Grimm, Calica’s letter was misleading and, therefore, constitutionally
inadequate because it did not identify “a critical fact” known only to the
Department—the mailing date, or what she terms “the date of deposit”—that would
have made the notice meaningful. She posits that the Department could have
included a certificate of service or an affidavit of mailing with Calica’s letter.
Without such a document or something in the letter itself to indicate that the letter’s
date was also its actual mailing date, she contends that she had no way of knowing
when the 35-day period began to run.
¶ 21 Procedural due process protects against mistaken or unjustified deprivations of
life, liberty, or property. Heelan, 2015 IL 118170, ¶ 31. Due process is a flexible
concept, whose requirements depend on the government action at issue and the
private interest implicated by that action. See People v. Lindsey, 199 Ill. 2d 460,
472 (2002) (citing Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). The
Department correctly asserts that due process does not require judicial review of
administrative agency decisions, nor does it require agencies to inform parties
affected by those decisions that they are subject to judicial review only within 35
days. See Carver v. Nall, 186 Ill. 2d 554, 563 (1999), overruled on other grounds
by Nudell, 207 Ill. 2d at 423; Carroll v. Department of Employment Security, 389
Ill. App. 3d 404, 411 (2009). However, due process does require that agency
decisions themselves provide clear notice to affected parties. See East St. Louis
Federation of Teachers, Local 1220 v. East St. Louis School District No. 189
Financial Oversight Panel, 178 Ill. 2d 399, 420 (1997) (“[n]otice is a fundamental
requirement of due process”). Consequently, as the appellate court here observed,
expiration of the 35-day period under section 3-103 will not bar a plaintiff’s
complaint for administrative review “where the agency fails to fairly and
adequately inform a plaintiff of its decision.” Bell v. Retirement Board of the
Firemen’s Annuity & Benefit Fund, 398 Ill. App. 3d 758, 763 (2010); Coleman, 392
Ill. App. 3d at 386; Barry v. Retirement Board of the Firemen’s Annuity & Benefit
Fund, 357 Ill. App. 3d 749, 761-62 (2005).
¶ 22 In Coleman, Bell, and Barry, the widows of Chicago firefighters sought
death-benefit annuities after their husbands died. The Chicago firefighter’s
retirement board sent letters to the widows, stating that their annuity applications
were granted. The board did not inform them that the benefits were nonduty death
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benefits under section 6-141.1 or the Pension Code, rather than duty death benefits
under section 6-140. In each case, the appellate court held that the board’s letters
were misleading because they obscured the adverse nature of the decisions and that
the consequent due process violations tolled the 35-day period under section 3-103.
Bell, 398 Ill. App. 3d at 765-66; Coleman, 392 Ill. App. 3d at 386; Barry, 357 Ill.
App. 3d at 763.
¶ 23 Those cases are in inapposite to the extent that the Department fairly and
adequately informed Grimm of its decision. Unlike the letters in Coleman, Bell, and
Barry, Calica’s letter was clear on the merits. Calica stated that he concurred with
the administrative law judge’s recommendation that Grimm’s request for an
expunction of the indicated finding should be denied. Nevertheless, the appellate
court extrapolated from the holdings in those cases to conclude that the letter was
still confusing as to its mailing date. We agree.
¶ 24 Certainly, an administrative agency like the Department has no constitutional
duty to inform a party affected by one of its decisions of the statutory right to
judicial review or the jurisdictional window in which to exercise that right. See
Carver, 186 Ill. 2d at 563; Carroll, 389 Ill. App. 3d at 411. When an agency
chooses to do so, however, its information must not be misleading. Whether
Calica’s letter, and specifically its last paragraph, was fair and adequate on due
process grounds implicates Mathews v. Eldridge, 424 U.S. 319 (1976), and its
now-traditional balancing test for determining whether a person has received due
process. In Mathews, the Supreme Court instructed:
“[I]dentification of the specific dictates of due process generally requires
consideration of three distinct factors: First, the private interest that will be
affected by the official action; second, the risk of an erroneous deprivation of
such interest through the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards; and finally, the Government’s
interest, including the function involved and the fiscal and administrative
burdens that the additional or substitute procedural requirement would entail.”
Id. at 335.
¶ 25 Here, the private interest affected by the Department’s final decision to deny
Grimm’s request for an expunction is her interest in present or future employment
as an Illinois public school teacher. See Lyon v. Department of Children & Family
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Services, 209 Ill. 2d 264, 273-74 (2004) (holding that “an indicated report” against
a teacher “implicates a protected due process interest”). The Department concedes
that Grimm likely had a constitutionally protected liberty or property interest
impacted by the indicated finding.
¶ 26 Additionally, there was a risk of erroneous deprivation of that interest through
the procedures used—namely, the last paragraph of Calica’s letter. That paragraph
informed Grimm that she could seek judicial review of the decision pursuant to the
Administrative Review Law within 35 days of the date of service, but it did not
mention that the service date is the mailing date under section 3-103. As the
appellate court aptly noted, a statutory provision that deems notice given before it is
received is, at best, counterintuitive and probably confusing to an affected party.
2015 IL App (2d) 140820, ¶ 20. To compound that confusion, the letter cited the
statute as a whole, not section 3-103, which might have alerted Grimm that the
service date is considered the mailing date. To ignore the misleading nature of the
last paragraph of the letter would be to ignore the fact that the risk of an erroneous
deprivation of her protected due process interest ripened into a “clearly erroneous”
decision after a hearing before the trial court. Notably, the Department has never
challenged that court’s decision, reversing the Department’s decision. On the
merits, Grimm won.
¶ 27 Finally, the value of telling Grimm that the date on the letter was both the
mailing date and the service date is obvious, and the burden on the Department in
changing the wording of a letter is insignificant. The Department already follows
such a practice with respect to other notifications. The Department’s regulations
provide that review of an initial finding must be made “within 60 days after
notification of the completion of the investigation by the Child Protective Services
Unit, as determined by the date of the notification sent by the Department.” See 89
Ill. Adm. Code 336.40(c) (2000). If the Department clearly informs affected parties
of the date that the 60-day period for review of an initial finding begins, it also
could clearly, and easily, inform affected parties of the date that the 35-day period
for judicial review of a final decision begins. In that regard, the Department could
have followed the template provided in Carroll, 389 Ill. App. 3d at 406, where the
agency’s decision told the affected party that he must “file a complaint for
administrative review *** within 35 days from the above mailing date.”
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¶ 28 Balancing Grimm’s constitutionally protected interest, the risk of an erroneous
deprivation of that interest, and the value of substitute procedures against the
burden on the Department to change boilerplate language in a letter announcing its
final decision, we conclude that Grimm did not receive the process to which she
was due. Accordingly, Grimm’s failure to file her complaint for judicial review
within the 35-day period under section 3-103 did not deprive the trial court of
jurisdiction.
¶ 29 CONCLUSION
¶ 30 For the reasons that we have stated, the judgment of the appellate court is
affirmed.
¶ 31 Affirmed.
¶ 32 JUSTICE THOMAS, dissenting:
¶ 33 This is a simple case that has yet to receive a simple resolution. Plaintiff filed
her complaint for administrative review one day after the jurisdictional deadline
had expired. Accordingly, the circuit court was without jurisdiction and should
have dismissed the complaint. The trial court did not do so, finding that, because
plaintiff filed the complaint a mere 24 hours after the deadline had expired, the
interests of justice allowed the court to hear the complaint. The appellate court
wisely did not endorse the circuit court’s “interests of justice” rationale. 5 Rather
than reversing the circuit court in a summary order, however, the appellate court
reached the same result under the due process clause of the United States
Constitution. U.S. Const., amend. XIV. Without discussing the relevant case law
from this court, the appellate court held that the Department violated plaintiff’s
constitutional rights by sending her a notice of its final decision that was not clear
as to its mailing date and that did not explain that the date of service is the date of
mailing. Today, a majority of this court has adopted the appellate court’s reasoning.
5
See Carroll v. Department of Employment Security, 389 Ill. App. 3d 404, 410 (2009)
(explaining that “equitable defenses do not apply to jurisdictional determinations”).
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Unlike the appellate court, the majority acknowledges that, under our controlling
case law, due process does not require judicial review of administrative decisions,
nor does it require notice of the right of judicial review. The majority nevertheless
affirms the appellate court, holding that the notice was so confusing that it violated
the due process clause because it did not explain that the date of service is the date
of mailing. The majority holds this despite that fact that the notice (1) tracked the
statutory language precisely, (2) did not contain any incorrect information, and
(3) was served on plaintiff’s attorney. In other words, the majority holds today that
a notice that is not required by the due process clause, is served on an attorney in a
proceeding not required by the due process clause, and contains a correct statement
of the law, violates the due process clause. Because I do not believe that the
Department violated plaintiff’s constitutional rights when it served her attorney
with a boilerplate notice that correctly stated the law, I dissent.
¶ 34 The Majority’s Holding
¶ 35 The majority’s holding is narrower than the appellate court’s. The appellate
court identified several ways in which the Department’s final order violated
plaintiff’s due process rights. First, the order appeared in the form of a business
letter, so plaintiff would have believed that the date on the order—July 30,
2013—was the date of the letter rather than the date of mailing. 2015 IL App (2d)
140820, ¶ 19. Second, even if the date of the letter could be taken as the mailing
date, nothing indicated that it was also the service date. Id. The court said that it
found the idea of a service date that it is known only to the one doing the serving
“troublingly counterintuitive.” Id. ¶ 20. The appellate court next explained that a
notice giver has “a burden of confusion to overcome” in that it must clearly explain
that the law deems notice given before it is actually received. Id. The court held that
the Department could have overcome the problem by “explicitly stating the deemed
service date.” Id. According to the appellate court, the notice given here did far less
than that, in that it did not even clearly show the mailing date. Id. Thus, the
Department had left plaintiff with the “ordinary challenge of knowing the law
regarding service but also the second challenge of learning the mailing date.” Id.
Because the Department could have alleviated any confusion by stating that the
mailing date was the service date and because the notice “was not in a format that
would be chosen by someone genuinely trying to convey the time limit for filing an
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administrative-review complaint,” the plaintiff was not afforded due process. Id. ¶
22.
¶ 36 By contrast, the only due process violation the majority identifies is that the
notice did not explain that the service date is the mailing date. According to the
majority, the rule that the service date is the mailing date is “probably confusing.”
Supra ¶ 26. The majority acknowledges that the notice cited the Administrative
Review Law (Review Law) (735 ILCS 5/3-101 et seq. (West 2014)) but not to the
specific section that contains the service rule. Supra ¶ 26. Applying the balancing
test from Mathews v. Eldridge, 424 U.S. 319 (1976), the majority concludes that
the Department violated plaintiff’s constitutional rights because it provided her
with “misleading” information and that it could have easily remedied the problem
by changing the wording of its notice. Supra ¶¶ 24-28.
¶ 37 The Relevant Authority Mandates a Reversal
¶ 38 The settled legal principles that apply to this case show that the majority’s
holding is not only wrong but impossible. An indicated finding that a teacher
committed child abuse creates a “substantial risk” that the teacher will be “barred
from pursuing his or her chosen occupation” and thus implicates due process
concerns at the administrative level. Lyon v. Department of Children & Family
Services, 209 Ill. 2d 264, 273-74 (2004). Due process is a flexible concept, and
what satisfies the right depends upon the circumstances. Mathews, 424 U.S. at 334.
Generally, procedural due process entails an orderly proceeding where an
individual is served with notice and has an opportunity to be heard. People ex rel.
Devine v. $30,700.00 United States Currency, 199 Ill. 2d 142, 155-56 (2002). The
right to an appeal from an administrative decision, however, is not essential to due
process of law. Carver v. Nall, 186 Ill. 2d 554, 563 (1999). Because judicial review
of administrative decisions is not required by the due process clause, it necessarily
follows that an administrative agency is not required to notify a party of the
statutory right to judicial review or of the 35-day time limit for exercising that right.
Id. at 562-63. Nor does the due process clause require the agency to explain how to
count the 35 days or to identify the exact date on which the complaint for
administrative review is due. See Carroll, 389 Ill. App. 3d at 410-11. The due
process clause does require, however, that the administrative agency give the
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plaintiff fair and adequate notice of the agency’s decision (see Bell v. Retirement
Board of the Firemen’s Annuity & Benefit Fund, 398 Ill. App. 3d 758, 764 (2010)),
and the 35-day time limit for filing a complaint for administrative review begins to
run only when a party has received that notice (id.).
¶ 39 A circuit court has the power to review administrative decisions only as
provided by law. Ill. Const. 1970, art. VI, § 9. Thus, a circuit court exercises special
statutory jurisdiction when it reviews a decision under the Review Law.
Collinsville Community Unit School District No. 10 v. Regional Board of School
Trustees, 218 Ill. 2d 175, 181-82 (2006). A party seeking administrative review
must strictly comply with the procedures set forth in the Review Law. Id. at 182. If
a party does not seek review within the time and manner set forth in the Review
Law, the parties are barred from obtaining judicial review. Fredman Brothers
Furniture Co. v. Department of Revenue, 109 Ill. 2d 202, 210-11 (1985). An action
for administrative review is commenced by filing a complaint “within 35 days from
the date that a copy of the decision sought to be reviewed was served upon the party
affected by the decision.” 735 ILCS 5/3-103 (West 2014). This 35-day time limit is
jurisdictional (Rodriguez v. Sheriff’s Merit Comm’n, 218 Ill. 2d 342, 350-51
(2006)), and therefore the circuit court must dismiss a complaint for administrative
review that is filed after this time period has expired (id. at 356-57). Because the
35-day time limit is a jurisdictional time limit that the courts are obligated to
enforce strictly, a court must dismiss a complaint for administrative review that is
filed a mere 1 day after the deadline has expired. See Board of Education of St.
Charles Community Unit School District No. 303 v. Adelman, 137 Ill. App. 3d 965
(1985) (court was without jurisdiction to review administrative review complaint
filed 36 days after copy of decision was sent to plaintiff’s attorney by certified
mail).
¶ 40 The date on an agency decision is presumed to be the mailing date. See
Summers v. Illinois Commerce Comm’n, 58 Ill. App. 3d 933, 937 (1978). Under
section 3-103 of the Review Law (735 ILCS 5/3-103 (West 2014)), the 35-day
period for filing a complaint for administrative review begins on the date that the
agency decision is mailed, which is also the date of service. Rodriguez, 218 Ill. 2d
at 351; Nudell v. Forest Preserve District, 207 Ill. 2d 409, 414, 423-24 (2003).
Under section 10-50(a) of the Administrative Procedure Act, service may be made
on a party’s agent appointed to receive service of process. 5 ILCS 100/10-50(a)
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(West 2014). The law is settled that notice to an attorney is notice to his client and
the attorney’s knowledge is imputed to his client. See Adelman, 137 Ill. App. 3d at
970. If the party’s agent is not notified personally, then notice must be by registered
or certified mail. 5 ILCS 100/10-50(a) (West 2014).
¶ 41 Against this backdrop of legal authority—none of which is disputed by the
majority—we may now consider what happened in this case. The Department
concedes that, pursuant to this court’s decision in Lyon, plaintiff—a school
teacher—likely had a constitutionally protected liberty or property interest that was
implicated when an indicated finding of child abuse was entered against her in the
central register. Consistent with the requirements of due process, plaintiff was
notified of the indicated finding, sought an administrative appeal, and participated
in a hearing before an administrative law judge (ALJ). The ALJ ruled against her,
and the Director entered a final administrative decision adopting the ALJ’s
decision. The decision was absolutely clear as to its merits—the Director adopted
the findings of fact and conclusions of law of the ALJ, and the ALJ’s
recommendation was attached to the Department’s final decision. At the top of the
decision, following the words “CERTIFED MAIL,” was the date July 30, 2013.
Going beyond what the due process clause requires, the decision notified plaintiff
of her right to seek judicial review and even provided the time for doing
so—“within 35 days of the date this decision was served on you.” (Emphasis
added.) This language tracked the governing statute—section 3-103 of the Review
Law—which provides that a complaint for administrative review must be filed
“within 35 days from the date that a copy of the decision sought to be reviewed was
served upon the party affected by the decision.” (Emphasis added.) 735 ILCS
5/3-103 (West 2014). Further, the notice provided plaintiff with a citation to the
Review Law. See 735 ILCS 5/3-101 et seq. (West 2014). None of this information
was required by the due process clause. 6 Carver, 186 Ill. 2d at 562-63.
¶ 42 The Department notified plaintiff of its decision by serving her attorney by
certified mail, return receipt requested. The decision was sent by certified mail on
July 30, 2013, and the return receipt is also signed and dated July 30, 2013. Under
6
Section 10-50(b) of the Administrative Procedure Act requires that “All agency orders
shall specify whether they are final and subject to the Administrative Review Law.” 5
ILCS 100/10-50(b) (West 2014).
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well-established law, the 35-day time period began to run on July 30, 2013.
Plaintiff’s attorney obviously knew this, and his knowledge is imputed to his client.
Plaintiff filed her complaint for administrative review on the thirty-sixth day,
September 4, 2013. Accordingly, the circuit court was without jurisdiction to hear
the complaint for administrative review and should have dismissed it. There were
no due process concerns, as the Department went above and beyond what the due
process clause requires.
¶ 43 Neither the Appellate Court’s Reasoning Nor
the Majority’s Withstands Scrutiny
¶ 44 Neither the majority nor the appellate court offered any persuasive reasons as to
why the law does not apply to plaintiff. As noted above, the majority’s holding is
narrower than the appellate court’s. Unlike the appellate court, the majority does
not identify any issues with the form of the decision or the mailing date. The
appellate court’s concerns in this regard were not well founded. The document sent
to plaintiff very clearly stated that it was the final decision, and it stated at the top
“CERTIFIED MAIL July 30, 2013.” And, even if the appellate court was correct
that the date appeared to be the date of the decision rather than the mailing date, that
does not help plaintiff because it is settled that the date on an agency decision is
presumed to be the mailing date. Summers, 58 Ill. App. 3d at 937. This is a
rebuttable presumption, but plaintiff did not rebut it. In fact, once the Department
proved the mailing date by affidavit and the certified mail receipt, plaintiff admitted
that the decision was mailed to her counsel on July 30. Moreover, the notice was
served upon her attorney, and presumably her attorney knows the service rules.
¶ 45 The majority adopts only that portion of the appellate court’s holding that held
that the notice was unnecessarily confusing in that it stated that the 35 days begins
to run on the date that the decision “was served upon you.” 7 The majority agrees
7
At the beginning of its analysis, the majority explains that the appellate court
concluded that the notice was “confusing as to its mailing date,” and the majority states that
it agrees. Supra ¶ 23. However, in the paragraphs that follow, the majority says nothing
about the notice being confusing as to its mailing date, and the majority finds a due process
violation solely on the basis that the notice did not explain the mailbox rule. Supra
¶¶ 24-28.
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with the appellate court that the idea of a document being deemed served when it is
mailed is “probably confusing” (supra ¶ 26) and, therefore, the due process clause
of the United States Constitution is violated if the notice does not explain that the
mailing date is the service date (supra ¶ 27). The majority acknowledges that due
process does not require notice of the right to judicial review but holds that if notice
is provided, it must not be misleading. Supra ¶ 24. According to the majority, the
Department could have remedied this constitutional violation in one of two ways:
(1) it could have cited section 3-103 of the Review Law instead of citing the statute
as a whole, or (2) it could have explained that the mailing date is the service date.
Supra ¶¶ 26-27.
¶ 46 There are several problems with this reasoning. 8 First, the notice was not
misleading. It precisely tracked the statutory language and provided a correct
statement of the law. Second, as to whether the Department could have remedied
the alleged constitutional violation by citing to section 3-103 instead of the statute
as a whole, I would note that the entire Review Law is a mere 13 sections long and
covers five pages in the official statute book. See 735 ILCS 5/3-101 et seq. (West
2014). Surely whether or not the due process clause is violated cannot turn on the
length of time it takes a person to locate the section titled “Commencement of
action.” Third, I fail to see how citing to section 3-103 would alleviate the
confusion that concerns the majority. Again, the majority finds a due process
violation because a person might not understand that a document is considered
served when it is mailed. According to the majority, citing section 3-103 would
have “alerted Grimm that the service date is considered the mailing date.” Supra
¶ 26. Would it have? If plaintiff had been given that citation and looked up the
section, she would have learned that, just as the notice told her, the 35 days began to
run when the document was served upon her. Then she would have seen the
following paragraph, the one that supposedly would have alleviated her confusion:
8
I am assuming for the sake of argument that the majority is correct when it claims that
a notice not required by the due process clause violates the due process clause if it is
misleading. Supra ¶ 24. It should be noted, however, that the majority cites no authority for
this proposition. Given that the majority is wrong whether or not that it is the law, resolving
that issue is not necessary for purposes of this dissent.
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“The method of service of the decision shall be as provided in the Act
governing the procedure before the administrative agency, but if no method is
provided, a decision shall be deemed to have been served either when a copy of
the decision is personally delivered or when a copy of the decision is deposited
in the United States mail, in a sealed envelope or package, with postage
prepaid, addressed to the party affected by the decision at his or her last known
residence or place of business.” 735 ILCS 5/3-103 (West 2014).
¶ 47 So, at this point, I would assume the following questions would come to
plaintiff’s mind: (1) What is the Act governing the procedure before the
administrative agency, and what method of service does it provide? (2) What does
it mean for a decision to be personally delivered to me? (3) Does “personally
delivered” mean when my attorney gave it to me, or does it mean hand delivered by
a mail carrier? (4) How can the last clause ever apply to me when the letter was not
sent to my residence or place of business? Nothing in this paragraph would have
indicated to plaintiff that the document was deemed served when sent to her
attorney by certified mail. If the majority honestly believes that giving a citation to
this section would have cleared up any of plaintiff’s alleged confusion about the
mailbox rule, then surely it is obligated to explain how.
¶ 48 Fourth, and most importantly, the majority’s solution for remedying the
perceived due process problem—notifying a party that the mailing date is the
service date—is not the only way the Department could remedy the problem. The
Department could simply pare the notice back to the minimum statement required
by the Administrative Procedure Act: that the decision is final and subject to the
Review Law. This would remove any chance that a court could later find a due
process problem with the notice. Again, Carver held that the due process clause
does not require judicial review of administrative decisions, nor does it require
notice of the right to judicial review or of the 35-day time limit for seeking judicial
review. Carver, 186 Ill. 2d at 562-63. The appellate court based its holding on its
concern that “[a] potential administrative-review plaintiff *** faces not only the
ordinary challenge of knowing the law regarding service but also the second
challenge of learning the mailing date.” 2015 IL App (2d) 140820, ¶ 20. And the
majority bases its decision on the fact that the notice was misleading and confusing
because it did not explain the mailbox rule. Supra ¶ 27. The problem with both of
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these positions is that this court has already implicitly held that any such challenges
of knowing the law regarding service do not violate the due process clause.
¶ 49 If plaintiff would have received the same administrative decision with a notice
containing only the statutorily required information, she would have had the burden
of learning how to exercise her right of judicial review and the time limits for filing
a complaint for administrative review. If she were able to locate section 3-103, she
would then face all of the questions that I listed previously. She would then need to
consult case law to learn that the date on an agency decision is considered the
mailing date. Finally, she would need to learn that the Children and Family
Services Act adopts the Administrative Procedure Act and that section 10-50(a) of
that statute provides that a party’s agent appointed to receive service of process
may be notified of the decision by certified mail. 5 ILCS 100/10-50(a) (West 2014).
Certainly plaintiff would have been far more confused in this situation and would
have faced much more of a challenge of learning the law than she did here. And yet,
this court has held that leaving her the burden to learn all of this information does
not violate the due process clause. Carver, 186 Ill. 2d at 562-63. But today the
majority holds that if the Department gives her only some of this information, the
due process clause is violated. This simply cannot be so. The majority’s holding is
not possible under this court’s jurisprudence.
¶ 50 The basis for the majority’s holding is that when an agency gives notice, even
notice that is not constitutionally required, the “information must not be
misleading.” Supra ¶ 24. But how can a court deem misleading a notice that
correctly states the law? We are treading on dangerous ground if we are going to
start holding that the constitution is violated when a party’s attorney is given
correct legal information simply because that information might be misinterpreted
by a layperson. Moreover, the majority’s holding cannot be correct. If an agency
“misleads” a party by not explaining the mailbox rule, then a party who is given
only the statutorily required notice is also misled. How can the constitution be
violated in one of these situations but not the other? And, as set forth above, a
person who was given a citation to section 3-103 would face the same alleged
confusion as plaintiff, as section 3-103 in no way clearly conveys that the mailbox
rule applies here. The notice given to plaintiff tracked the statutory language and
correctly stated the law. There is no basis whatsoever to hold that it is misleading,
let alone so misleading that it violated the United States Constitution.
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¶ 51 No Authority Supports an Affirmance in This Case
¶ 52 Neither the appellate court nor the majority cites any authority supporting a
holding that this notice violated the due process clause. The appellate court cited
Coleman for the proposition that “notices that mislead about the nature of
administrative decisions are insufficient to satisfy due process.” 2015 IL App (2d)
140820, ¶ 16 (citing Coleman v. Retirement Board of the Firemen’s Annuity &
Benefit Fund, 392 Ill. App. 3d 380, 386 (2009)). The decision here, however, did
not mislead plaintiff about the nature of the administrative decision. The notice
clearly informed her that the Department was upholding the ALJ’s denial of her
request to expunge the indicated finding of child abuse. The appellate court
candidly admitted that this case does not present the same issue as Coleman, and
the court also acknowledged that the flaw it found in the notice was not as serious
as the one in Coleman. Id. ¶¶ 17, 21. The majority adds citations to Bell, 398 Ill.
App. 3d at 765-66, and Barry v. Retirement Board of the Firemen’s Annuity &
Benefit Fund, 357 Ill. App. 3d 749, 763 (2005), but these cases simply stand for the
same proposition as Coleman—due process is violated when the notice misleads a
party about the nature of the decision that had been entered. The problem with the
notices in these three cases is that they did not clearly inform the parties that
judgments adverse to their interests had been entered and could have led the parties
to believe that they had actually prevailed in the administrative proceedings. Thus,
the notices in these cases misled the parties as to the nature of the judgment that had
been entered. These cases do not stand for the proposition that ignorance of the law
is an excuse, which is what the majority holds today. The majority faults the
Department here not for telling plaintiff something that was incorrect but for failing
to explain the mailbox rule to her. The Bell court acknowledged that Carver was the
controlling law and was careful to explain that it was merely holding that notice of
the board’s decision must be “fair and adequate.” Bell, 398 Ill. App. 3d at 764-65.
Here, the notice of the board’s decision was fair and adequate, and the Bell rule
simply has no application here.
¶ 53 The appellate court also based its holding on another line of inapplicable
authority. The appellate court cited Jones v. Flowers, 547 U.S. 220 (2006), and
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Passalino v. City of Zion, 237 Ill. 2d 118 (2009), for the proposition that a notice
“must be in a form such as would be chosen by someone who was genuinely
seeking to convey the information that the person whose rights are at risk would
need to protect those rights.” 9 2015 IL App (2d) 140820, ¶ 15. There are two
problems. First, the rule that those cases cite is inapplicable because it applies to
notices that are required by the due process clause. See Jones, 547 U.S. at 226 (“due
process requires the government to provide ‘notice reasonably calculated, under all
the circumstances, to apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections’ ” (quoting Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950))); Passalino, 237 Ill.
2d at 124 (“[p]laintiffs’ entitlement to procedural due process arises out of
plaintiffs’ property interest, which is affected by the zoning map amendment”). In
both cases, the courts were considering the initial notice that is required before the
government may interfere with a protected property interest. Here, by contrast, we
are in a situation where plaintiff has already received all the process she is due, and
we are considering a notice that is required by statute but not by the due process
clause. Accordingly, those cases have no application.
¶ 54 Second, even if those cases did apply, they would not compel a finding that the
notice here violated due process. Again, the question asked by those cases is
whether the means employed were such as would be chosen by someone desirous
of actually informing the recipient. Jones involved a house that was going to be
sold for nonpayment of delinquent taxes. The commissioner of state lands sent
notice to the property owner by certified mail, but the letter was returned as
“unclaimed.” Jones, 547 U.S. at 223-24. The Supreme Court held that, once the
commissioner was on notice that the letter had not been received, the due process
clause required the government to make reasonable additional attempts to provide
notice. The Supreme Court compared failure to act in this situation as akin to doing
nothing after watching the postman drop the letter down a storm drain. Id. at 229. In
Passalino, this court held that providing publication notice of a meeting to discuss a
9
The rule set forth by these cases is actually worded as that, “ ‘when notice is a
person’s due . . . [t]he means employed must be such as one desirous of actually informing
the absentee might reasonably adopt to accomplish it.’ ” Jones, 547 U.S. at 229 (quoting
Mullane, 339 U.S. at 315); Passalino, 237 Ill. 2d at 126 (same).
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zoning change that would have affected the plaintiffs’ property rights was not
sufficient when the plaintiffs’ address was easily ascertained. Passalino, 237 Ill. 2d
at 127. Now compare what happened in Jones and Passalino to what happened in
this case. Here, the method of notice chosen by the Department was certified mail,
return receipt requested, and on plaintiff’s attorney, and the Department received a
signed and dated return receipt. The notice spelled out plaintiff’s right of judicial
review, notified her of the time limit for filing such an action, and cited to the
governing law. Clearly, the concerns that animated the decisions in Jones and
Passalino are not even remotely present, and it is simply untenable to claim that the
Department did not choose a method of notice reasonably calculated to apprise
plaintiff of her rights.
¶ 55 Perhaps sensing the futility in relying on Jones and Passalino, the majority
instead relies on Mathews, 424 U.S. 319. Unfortunately, Mathews is no more
applicable than Jones and Passalino. The rule that the majority sets forth here is
that a notice required by statute must not be misleading. Supra ¶ 24. But the
Mathews test does not identify whether a notice is misleading. Rather, it is used for
determining what process is due in the first instance. Under the Mathews test, a
court considers the private interest affected by the official action, the risk of an
erroneous deprivation of that action, 10 the value of any additional or different
procedural safeguards, and the government’s interest and the burdens that
additional or different procedures would entail. Mathews, 424 U.S. at 335. In
Mathews, the Supreme Court held that due process does not require an evidentiary
hearing before Social Security disability benefits may be terminated and that the
administrative procedures in place under the Social Security Act are sufficient to
comport with due process. Id. at 349. Here, the majority balances plaintiff’s
substantial interest in her employment against the burden on the Department to
rewrite its notice and finds an easy win for plaintiff. Supra ¶¶ 24-28.
10
When considering the risk of an erroneous deprivation of the action, the majority
bolsters its argument by relying on the fact that plaintiff ultimately prevailed on the merits
in the trial court. Supra ¶ 26. This is clearly improper. We know that plaintiff prevailed in
the trial court only because the court improperly refused to dismiss a complaint over which
it had no jurisdiction. The interests of the parties must be considered at the time the notice
was sent. Cf. Krecioch v. United States, 221 F.3d 976, 980 (7th Cir. 2000) (“[t]he operative
question is whether notice was adequate at the time the notice was sent”).
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¶ 56 Again, plaintiff has already received the process she was due. She received
notice and an opportunity to be heard before her request to expunge the indicated
finding was denied. We held in Carver that due process does not require judicial
review of administrative decisions, nor does it require notice of the statutory right
of judicial review. Unlike Mathews, we are considering a notice not required by the
due process clause in a proceeding not required by the due process clause, after a
person has already received due process. Thus, the Mathews test has no relevance
to the issue before us.
¶ 57 The proof that Mathews does not apply here is that the Carver holding would
have been impossible if it did. If the Mathews test yields an answer that an
explanation of the mailbox rule is required to satisfy the due process clause, then
certainly it would also yield the answer that notice of the 35-day time limit was
required. To see this, we merely have to redo the majority’s analysis but change the
facts to the notice not containing the 35-day time limit. As the majority notes,
plaintiff had a protectable property interest in her employment. There would clearly
be a risk of erroneous deprivation of that interest if she was not informed of the time
limit for seeking judicial review. The value of telling her of the time limit is
manifest and obvious, and the burden on the Department to add this language to a
boilerplate notice is trivial and insignificant. Thus, under the Mathews test, notice
of the 35-day time limit would be required. But that is not what the court held in
Carver. This court held that the administrative procedures in place were sufficient
to satisfy due process without judicial review, and therefore the due process clause
did not require notice of that right or of the 35-day time limit. Mathews simply does
not apply here, and if it did, Carver would have been decided the other way. It
simply cannot be the case that Mathews is the proper test for determining what
process is due in the first instance, but is not the test for determining whether notice
of the statutory right to administrative review and the 35-day time limit is required,
but then is the test for determining whether that same notice contains enough
information. Mathews has no more application here than the cases relied on by the
appellate court, and thus neither the appellate court nor the majority has cited any
authority supporting a decision in plaintiff’s favor.
¶ 58 The can of worms that the majority is opening here should be obvious. Because
it is always relatively easy to make a wording change in a form notice, not making
such a change will almost always lose when balanced against a person’s protected
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property interest. It is difficult to see how further wording changes spelling out a
person’s rights under the law would not be required both here and in countless other
notices in settings in which a person has a protectable property interest, even if that
person has already received due process. The Mathews test is designed to ensure
that a party receives the minimum amount of process necessary to satisfy the due
process clause. Now that the majority has employed it where it does not apply, it
can easily be seen how it will lead to a requirement that the government provide the
maximum information possible to spell out a party’s legal rights and to guarantee
that a party is not confused about the law in any fashion.
¶ 59 Plaintiff Did Not Claim That She Was Confused
by the Service Date
¶ 60 It is also noteworthy that plaintiff did not even claim that confusion over the
service date led to the late filing in this case. In her affidavit attached to her
response to the Department’s motion to dismiss, plaintiff explains that she received
her copy of the administrative decision on either August 12 or 13, 2013, at her
attorney’s office. She decided to hire a different attorney to handle the appeal. She
contacted 15 or 16 attorneys and met personally with 5 or 6 of them. Most of the
attorneys she spoke with said that they would not handle the case due to the nature
of the allegations. On September 4, 2013, she retained Malia and Rinehart to handle
the appeal. September 4 was one day after the jurisdictional deadline had expired.
So, according to plaintiff’s own affidavit, she had trouble finding an attorney to
handle her case, and she was not able to retain one until after the jurisdictional
deadline had expired. She did not claim in her affidavit that she thought that the
service date was other than July 30, 2013. The problem appears to be one of not
finding an attorney in time rather than confusion over the service date. This is a
truly unfortunate situation, but it in no way means that the Department violated
plaintiff’s constitutional rights.
¶ 61 No One Has Identified Any Other Possible
Service Date Besides July 30, 2013
¶ 62 It is also remarkable that plaintiff has never said what she thought the service
date was. Surely if the case one is making is that they were misled as to the proper
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service date, that person has an obligation to identify the date she thought was
correct. Yet plaintiff never identified any other date, nor did her attorney, the
appellate court, or the majority. The majority cannot complete this sentence: “a
reasonable person in plaintiff’s position would have believed that the service date
was ___.” Was what? No one will say. The only date on anything was July 30,
2013. This was the date on the decision following the words “CERTIFIED MAIL.”
It was also the date on the certified mail form and on the certified mail return
receipt. There was no other date to find because there was no other date. The most
diligent recipient could have found no date other than July 30, 2013. Unless there is
another date, then it is not possible that plaintiff was misled.
¶ 63 CONCLUSION
¶ 64 In closing, I would say that, like the majority, I sympathize with plaintiff’s
plight. It is truly unfortunate that she could not find an attorney before the
jurisdictional deadline had run. Her plight, however, had nothing at all to do with a
violation of her constitutional rights by the Department. I also agree with the
majority that the notice could have used wording that would be more helpful to a
layperson. It could have explained that the service date was the mailing date or
simply said that the deadline was 35 days from the date on the letter. The fact that it
did not do so, however, does not mean that the due process clause was violated. Our
case law establishes conclusively that it was not. The proper outcome here would
have been to reverse the appellate court while admonishing the Department that it
would be helpful to word its notice differently. Ironically, it was plaintiff’s own
attorney who made this final point the best when he said at oral argument, “there’s
a real distinction here between *** best practices and what is essentially required
by due process.” I agree, and that is why I cannot join the majority opinion.
¶ 65 CHIEF JUSTICE KARMEIER joins in this dissent.
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