Nyhammer v. Basta , 2022 IL App (2d) 200460 ( 2022 )

2022 IL App (2d) 200460No. 2-20-0460
Opinion filed March 2, 2022
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
GRANT NYHAMMER, as Executive Director ) Appeal from the Circuit Court
of the Northwestern Illinois Area Agency on ) of Winnebago County.
Aging, )
)
Plaintiff-Appellant, )
)
v. ) No. 19-MR-1106
)
PAULA BASTA, in Her Official Capacity as )
Director of Aging, ) Honorable
) Donna R. Honzel,
Defendant-Appellee. ) Judge, Presiding.
________________________________________________________________________
JUSTICE McLAREN delivered the judgment of the court, with opinion.
Presiding Justice Bridges and Justice Hutchinson concurred in the judgment and opinion.
OPINION
¶1 After the Illinois Department on Aging (Department) denied the Northwestern Illinois Area
Agency on Aging (NIAAA) administrative hearings on two petitions, plaintiff, Grant Nyhammer,
the NIAAA’s executive director, filed a mandamus complaint seeking an order for hearings on the
petitions and other relief. The trial court dismissed plaintiff’s mandamus complaint for failure to
state a cause of action. On appeal, plaintiff argues that the trial court erred by dismissing its
complaint. For the reasons that follow, we vacate the trial court’s order and remand the matter to
the Department for rulings with findings of fact and conclusions of law regarding the NIAAA’s
two petitions.
2022 IL App (2d) 200460¶2 I. BACKGROUND
¶3 A. The Parties
¶4 Defendant, Paula Basta, is the current director of the Department. The Department is
mandated by the Adult Protective Services Act to “establish, design, and manage” a protective
services program to assist eligible, adult victims of elder abuse, neglect, self-neglect, and
exploitation. 320 ILCS 20/3(a) (West 2018). The Department designates area agencies on aging
as regional administrative agencies. Id. § 2(i). A regional administrative agency is a public or
nonprofit agency in a planning and service area that provides regional oversight in implementing
Adult Protective Services Act programs in a geographical region of the state. See id.
¶5 The Department designated the NIAAA as the regional administrative agency for planning
and service area one. 1 The NIAAA is also the area agency on aging (AAA) for planning service
and service area one.
“ ‘Area agency on aging’ means any public or non-profit private agency in a planning and
service area designated by the Department, which is eligible for funds available under the
Older Americans Act [(42 U.S.C. § 3001 et seq.)] and other funds made available by the
State of Illinois or the federal government.” 20 ILCS 105/3.07 (West 2018).
Plaintiff is the executive director of and general counsel for the NIAAA, a private nonprofit entity.
¶6 Under the Older Americans Act Amendments of 2006 (Older Americans Act) (42 U.S.C.
§ 3001 et seq. (2018)), the federal government distributes funds to the states each year. The states
use these funds to provide a wide range of services to their “ ‘older individual[s],’ ” whom the
1
Area one is comprised of the counties of Jo Daviess, Stephenson, Winnebago, Boone,
Carroll, Ogle, De Kalb, Whiteside, and Lee. 20 ILCS 105/3.08 (West 2018).
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2022 IL App (2d) 200460statute defines as individuals “60 years of age or older.” Id. § 3002(40). The Older Americans Act
requires each state to designate an agency responsible for creating a formula to determine the
intrastate distribution of Older Americans Act funds. Id. § 3025(a)(1)(A). That state agency must,
in turn, divide the state into subdivisions known as “planning and service areas” and must designate
an AAA for each planning and service area. Id. § 3025(a)(2)(A); see also 20 ILCS 105/3.07, 3.08
(West 2018). In Illinois, the state agency is the Department. Illinois is divided into 13 planning
and service areas. 20 ILCS 105/3.08 (West 2018).
¶7 B. Plaintiff’s First Petition
¶8 In June 2019, the NIAAA, through plaintiff, filed a petition for a hearing with the
Department, alleging that it was responsible for complying with the Older Americans Act and that
the Department improperly withheld funding to the NIAAA. In particular, the petition alleged the
following. In July 2013, plaintiff e-mailed defendant’s predecessor, John Holton, stating that the
Department’s Adult Protective Services Standards and Procedures Manual (manual) was invalid
because the Department enacted the manual without the public notice and comment requirements
of the Illinois Administrative Procedure Act (Procedure Act). See 5 ILCS 100/5-40 (West 2012).
In October 2013, plaintiff e-mailed Holton again, this time attaching a draft complaint for
mandamus that the NIAAA was “considering filing” and stating that he hoped to “find a solution
[short] of litigation.”
¶9 In December 2013, Holton sent plaintiff a letter stating that the Department was
terminating the NIAAA’s grant for fiscal year 2014, effective January 31, 2014, citing a provision
of its grant agreement allowing the Department to cancel that agreement “without cause” upon 30
days’ written notice. Holton stated that, as of February 1, 2014, the Department would take over
as the regional administrative agency for area one.
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2022 IL App (2d) 200460¶ 10 In April 2019, plaintiff met with defendant and three Department employees, including
Betsy Creamer. At the meeting, Creamer told plaintiff that she was given an order to “withhold
funding from [the] NIAAA to retaliate for [the] NIAAA’s advocacy regarding the Manual.”
Although Creamer did not say who gave that order, the NIAAA alleged that the Department
awarded “$3.79 million in Other Funding” to other area agencies on aging in 2014-2015, while
the NIAAA received nothing. The NIAAA sought a hearing on the alleged order to withhold
funding, claiming that this was done in retaliation for plaintiff’s complaints about the manual.
¶ 11 The nine-count petition alleged that (1) the Department failed to enact administrative rules
that comply with article 10 of the Procedure Act (5 ILCS 100/10-5 through 10-75 (West 2018));
(2) the Department violated the Older Americans Act of 2006 by withholding funds from the
NIAAA without, inter alia, providing due process; (3) the Department withheld funds from the
NIAAA for an improper purpose and as retaliation; (4) by withholding funds from the NIAAA for
an improper purpose, the Department violated the Older Americans Act by failing to improve the
capacity of serving older adults by concentrating resources, act in the clients’ best interests, give
preference to clients with the greatest economic need, and consider the needs of rural clients (42
U.S.C. §§ 3021(a)(1), 3025(a)(1)(D), 3025(a)(2)(E), 3027(a)(10)); (5) Creamer, acting under the
color of state law, deprived the NIAAA of its federal due process right by withholding funds;
(6) the Department violated Illinois law by withholding funds from the NIAAA for the improper
purpose of interfering with its State mandated advocacy responsibilities (89 Ill. Adm. Code
230.150, adopted at 5 Ill. Reg. 3722 (eff. Mar. 31, 1981)); (7) the Department violated Illinois law
by retaliatorily) terminating the NIAAA as the regional administrative agency (Ill. Const. 1970,
art. I, § 2; 320 ILCS 20/2(i) (West 2018)); (8) the Department violated Illinois law by improperly
terminating the NIAAA as the regional administrative agency, because that action interfered with
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2022 IL App (2d) 200460its state mandated advocacy responsibilities (89 Ill. Adm. Code 230.150, adopted at 5 Ill. Reg.
3722 (eff. Mar. 31, 1981)); and (9) the Department violated Illinois law by withholding funds from
the NIAAA under the order given to Creamer.
¶ 12 In July 2019, the Department denied the NIAAA a hearing on its first petition, stating in
an e-mail that the petition did not present a contested case.
¶ 13 C. The NIAAA’s Second Petition
¶ 14 In August 2019, the NIAAA, through plaintiff, filed a second petition for a hearing with
the Department. This second, five-count petition alleged the following. The Department
designated the NIAAA as the AAA for planning service area one and the regional administrative
agency for the adult protective services program for area one. As the regional administrative
agency for the adult protective services program (program), the NIAAA had broad authority to
manage the program, including designating program providers. The Department rejected the
NIAAA’s designations of providers and, in doing so, improperly intruded on the NIAAA’s
authority granted by the Illinois General Assembly. In addition, the Department used conflicting
standards to govern the program by rejecting the NIAAA’s designation and unlawfully managed
the program with invalid rules. Also, the Department had no administrative rules for hearings that
comply with the Procedure Act, which prevented the NIAAA from receiving a fair hearing on this
petition. In June 2019, the NIAAA “designated” adult protective service providers for area one. In
July 2019, the Department, through defendant, sent a letter to the NIAAA, stating that it rejected
its “recommendations” of providers because of “errors in the instructions and application used for
scoring purposes.”
¶ 15 Count I of the NIAAA’s second petition alleged that the Department violated the Adult
Protective Services Act by rejecting the NIAAA’s designation of providers, in violation of section
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2022 IL App (2d) 2004603(b) of the Adult Protective Services Act (320 ILCS 20/3(b) (West 2018)). Count II alleged that
the Department unreasonably rejected the NIAAA’s designation of providers, in violation of Title
89, Part 270, of the Illinois Administrative Code (89 Ill. Adm. Code 270). Count III alleged that
the Department “tainted the process” by unlawfully rejecting the NIAAA’s designation of
providers. Count IV alleged that the manual was not adopted under the rulemaking process
specified in the Procedure Act. Count V alleged that the Department did not have administrative
rules for contested hearings that comply with article 10 the Procedure Act.
¶ 16 In September 2019, the Department denied the NIAAA a hearing, again via e-mail, stating
that the second petition “did not present a contested case that would support the right to an
adjudicatory hearing.”
¶ 17 D. Plaintiff’s Mandamus Complaint
¶ 18 On November 5, 2019, plaintiff filed a three-count mandamus action against defendant in
the trial court. Count I alleged that the Department had a legal duty to enact administrative rules
for hearings that complied with article 10 of the Procedure Act and that defendant had not enacted
such rules. See 5 ILCS 100/10-5 through 10-75 (West 2018).
¶ 19 Count II alleged that the Department had a duty to provide plaintiff with an administrative
hearing on the first petition. Plaintiff incorporated paragraphs of the first petition into count II and
attached the first petition to the complaint. The first petition alleged that in July 2013 plaintiff sent
an e-mail to the current director of the Department, John Holton. Plaintiff stated that the
Department’s new manual was invalid and that it should be recalled. In October 2013, plaintiff e-
mailed Holton, stating that the NIAAA was considering litigation regarding the manual. In
December 2013, Holton sent a letter to plaintiff, stating that the Department was terminating the
NIAAA as the regional AAA effective February 1, 2014. The NIAAA received no funding from
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2022 IL App (2d) 200460the Department for fiscal year 2014-2015. The Department improperly withheld funding for the
purpose of retaliation. The first petition also alleged that the Department failed to enact
administrative rules for hearings that complied with article 10 of the Procedure Act. See id.¶ 20 Count III alleged that the Department had a duty to provide the NIAAA with an
administrative hearing on its second petition. Plaintiff incorporated paragraphs of the second
petition into III three and attached the second petition to the complaint.
¶ 21 On February 28, 2020, after hearing argument, the trial court dismissed plaintiff’s
complaint pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West
2018)). Plaintiff filed a “motion to vacate,” which the court denied as a motion to reconsider on
July 29, 2020. Plaintiff filed a timely notice of appeal on August 17, 2020.
¶ 22 II. ANALYSIS
¶ 23 A. Initial Matters
¶ 24 Initially, we address plaintiff’s motion to vacate the trial court’s dismissal of count III based
on a recently adopted regulation. See 89 Ill. Adm. Code 230.420(d), amended at 45 Ill. Reg. 10780(eff. Aug. 10, 2021). The recently adopted amendment to section 230.420(d)(2) provides that the
Department will allow appeals by “[a]ny AAA when the Department proposes to: *** [r]eject the
AAA’s recommendation to designate a service provider.” Id. Here, there is absolutely no language
overcoming the presumption of prospective, rather than retroactive, application. See Doe Three v.
Department of Public Health, 2017 IL App (1st) 162548, ¶ 37 (the appellate court applied an
administrative regulation prospectively because there was no language suggesting retroactivity).
Therefore, we deny plaintiff’s motion.
¶ 25 In a related motion, plaintiff seeks sanctions against defendant and counsel pursuant to
Illinois Supreme Court Rule 137 (eff. Jan. 1, 2018) and Rule 361 (eff. Dec. 1, 2021) for delaying
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2022 IL App (2d) 200460this litigation, making false representations to this court, and concealing the implementation of the
recently adopted regulation (see 45 Ill. Reg. 10780 (eff. Aug. 10, 2021)). Plaintiff’s motion is
premised on the false belief that the recently adopted regulation applies retroactively. Because the
enactment of the regulation at issue is not retroactive, it does not affect this litigation, and thus, we
deny plaintiff’s motion for sanctions.
¶ 26 B. Standard of Review
¶ 27 Our review in this appeal is guided by the procedural context from which it arose, a motion
to dismiss under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2018)).
Motions to dismiss under section 2-615 challenge the legal sufficiency of a complaint, based on
defects apparent on its face. Ferris, Thompson & Zweig, Ltd. v. Esposito, 2017 IL 121297, ¶ 5.
When reviewing whether a motion to dismiss under section 2-615 should have been granted, we
accept as true all well-pleaded facts and all reasonable inferences that may be drawn from those
facts. Id. The critical inquiry is whether the allegations of the complaint, when construed in the
light most favorable to the plaintiff, are sufficient to establish a cause of action upon which relief
may be granted. Id. A cause of action should not be dismissed pursuant to section 2-615 unless it
is clearly apparent that no set of facts can be proved that would entitle the plaintiff to recover. Id.An exhibit attached to a complaint becomes part of the pleading for every purpose, including the
decision on a motion to dismiss. Invenergy Nelson LLC v. Rock Falls Township High School
District No. 301, 2020 IL App (2d) 190374, ¶ 14. Where an exhibit contradicts the allegations in
a complaint, the exhibit controls. Id. Whether the trial court erred in granting or denying a section
2-615 motion presents a question of law and, therefore, our review is de novo. Ferris, Thompson
& Zweig, Ltd., 2017 IL 121297, ¶ 5.
¶ 28 C. Mandamus
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2022 IL App (2d) 200460¶ 29 Mandamus is an “extraordinary remedy” that compels a public official to perform a purely
ministerial duty that does not involve an exercise of discretion. People ex rel. Berlin v. Bakalis,
2018 IL 122435, ¶ 16. A court will award mandamus relief only when the plaintiff “ ‘establishes
a clear right to the relief requested, a clear duty of the public official to act, and clear authority in
the public official to comply.’ ” (Internal quotation marks omitted.) Id. (quoting People ex rel.
Glasgow v. Carlson, 2016 IL 120544, ¶ 15).
¶ 30 D. Administrative Review
¶ 31 With administrative cases, we review the administrative agency’s decision, not the trial
court’s decision. Kildeer-Countryside School District No. 96 v. Board of Trustees of the Teachers’
Retirement System, 2012 IL App (4th) 110843, ¶ 20. The applicable standard of review depends
on whether the question presented is one of fact, one of law, or a mixed question of fact and law.
Kouzoukas v. Retirement Board of the Policemen’s Annuity & Benefit Fund of the City of Chicago,
234 Ill. 2d 446, 463 (2009). An administrative agency’s decision on a question of law is not binding
on a reviewing court and is subject to de novo review. Engle v. Department of Financial &
Professional Regulation, 2018 IL App (1st) 162602, ¶ 29. In contrast, we will not disturb an
agency’s findings of fact unless they are against the manifest weight of the evidence. Id. ¶ 30.
Finally, an agency’s conclusion on a mixed question of fact and law is reviewed for clear error. Id.
¶ 31.
¶ 32 Further, when, as here, an agency is subject to the Procedure Act, a final decision by the
agency “shall include findings of fact and conclusions of law, separately stated. Findings of fact,
if set forth in statutory language, shall be accompanied by a concise and explicit statement of the
underlying facts supporting the findings.” 5 ILCS 100/10-50(a) (West 2018). “Therefore, while an
agency is not required to make a finding on each evidentiary fact or claim, its findings must be
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2022 IL App (2d) 200460specific enough to permit an intelligent review of its decision.” Lucie B. v. Department of Human
Services, 2012 IL App (2d) 101284, ¶ 17.
¶ 33 Here, we determine that the Department’s summary dismissals of the NIAAA’s petitions
and its conclusory statements that the petitions failed to present contested cases were insufficient
for meaningful judicial review. A decision that contains no findings of facts “is simply insufficient
to permit an intelligent review of that decision.” Violette v. Department of Healthcare & Family
Services, 388 Ill. App. 3d 1108, 1112 (2009).
¶ 34 Defendant argues that the Procedure Act only requires the Department to “adopt rules
establishing procedures for contested case hearings.” See 5 ILCS 100/10-5 (West 2018).
Defendant notes that a contested case is defined as “an adjudicatory proceeding *** in which the
individual legal rights, duties, or privileges of a party are required by law to be determined by an
agency only after an opportunity for a hearing.” Id. § 1-30.
¶ 35 Both petitions alleged, inter alia, that the Department failed to comply with the Procedure
Act because it did not implement rules for administrative hearings as required in article 10 (5 ILCS
100/10-5 through 10-75 (West 2018)).
¶ 36 The Procedure Act’s provisions apply to the Department. 20 ILCS 105/5.02 (West 2018)
(“The provisions of the Illinois Administrative Procedure Act [(5 ILCS 100/1-1 et seq.)] are hereby
expressly adopted and shall apply to all administrative rules and procedures of the Department
under this Act ***.”). The Procedure Act provides that “each agency shall *** adopt rules of
practice setting forth the nature and requirements of all formal hearings.” 5 ILCS 100/5-10(a)
(West 2018). Section 10-5 of the Procedure Act states, “[a]ll agencies shall adopt rules establishing
procedures for contested case hearings.” (Emphasis added.) Id. § 10-5. Section 10-10 provides,
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2022 IL App (2d) 200460“[a]ll agency rules establishing procedures for contested cases shall at a minimum comply with
the provisions of this Article 10.” (Emphasis added.) Id. § 10-10.
¶ 37 The NIAAA alleged that defendant failed to adopt administrative rules for hearings that
complied with article 10 of the Procedure Act for:
“a. The qualifications of administrative law judges [(id. § 10-20)];
b. The necessary details required in a hearing notice [(id. § 10-25)];
c. The disqualification of an administrative law judge [(id. § 10-30(b))];
d. Bias or conflict of interest [(id.)];
e. What must be included in the record for a contested hearing [(id. § 10-35)];
f. The rules of evidence at a hearing [(id. § 10-40)];
g. The proposal for decision [(id. § 10-45)];
h. What must be in the decision and orders [(id. § 10-50)];
i. Expenses and attorney fees in contested hearings [(id. § 10-55)];
j. Ex parte communications after a notice of hearing [(id. § 10-60)];
k. Staying contested hearings for military service [(id. § 10-63)];
l. Waiving compliance with [the Procedure Act] [(id. § 10-70)]; and
m. Service by email [(id. § 10-75)].”
¶ 38 Defendant argues that the Department had no obligation to enact rules pursuant to article
10 of the Procedure Act because the NIAAA had no right to hearings on its first and second
petitions. Thus, defendant does not dispute that the Department failed to enact the rules at issue.
The Department argues only that the NIAAA was not entitled to hearings because the petitions
failed to present a contested case.
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2022 IL App (2d) 200460¶ 39 The NIAAA’s first petition alleged, inter alia, that the Department withdrew funding and
terminated the NIAAA as an adult service provider for an improper purpose. The NIAAA alleged
that the Department took these actions to retaliate against plaintiff after plaintiff told the
Department’s executive director that the Department’s manual was invalid because it was enacted
without the public notice and comment requirements of the Procedure Act. See id. § 5-40.
¶ 40 The NIAAA’s second petition alleged that the Department improperly denied approval of
the NIAAA’s recommended providers. Section 270.215(b)(1) of the Department’s regulations is
instructive. That section provides “[t]he Department reserves the right to *** reject
recommendations *** of a regional administrative agency in the designation of *** provider
agencies; however, the Department will not do so unreasonably.” (Emphasis added.) 89 Ill. Adm.
Code 270.215(b)(1) (2018). The Department’s regulations further provide that its approval “shall
not be unreasonably withheld.” (Emphasis added). Id. § 270.220(d). Generally, whether a party
acted reasonably is a question of fact. See, e.g., Cole v. Byrd, 167 Ill. 2d 128, 136-37 (1995) (stating
whether medical expenses are reasonable is a question of fact); Wells v. State Farm Fire &
Casualty Insurance Co., 2021 IL App (5th) 190460, ¶ 37 (“whether a party has employed ***
‘reasonable efforts’ is a question of fact”). However, here, the Department made no findings of
fact and there was no hearing to allow the presentation of evidence regarding the allegedly
unreasonable action.
¶ 41 Here, it is patently obvious that the NIAAA was seeking a determination of its rights,
duties, or privileges by seeking a hearing with the Department. Contrary to the enunciated public
policy recognizing that there should be some form of administrative review (5 ILCS 100/10-5
(West 2018)), the Department summarily determined that there was no need for a hearing. The
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2022 IL App (2d) 200460Department denied the NIAAA’s petitions without investigation, findings, or explanation, but
somehow concluded that the petitions failed to present contested cases.
¶ 42 In doing so, the Department failed and refused to provide a means for administrative review
for the determination of the NIAAA’s rights, duties, and responsibilities because it failed to grant
a hearing where findings of fact and conclusions of law were determined after an opportunity to
be heard. See id. § 1-30. The Department dismissed the petitions without providing any means to
effectively appeal or review the decisions and without enacting rules to even validate its actions.
We do not believe that the legislature ever intended a system for the adjudication of rights, duties,
or privileges as simplistic as conceived by the Department.
¶ 43 The Department was required to give the NIAAA adjudicatory hearings and determine the
merits of its petitions. It refused to do so. We determine that the Department shall grant the NIAAA
hearings and render decisions so that, if desired, administrative review may be perfected.
¶ 44 E. Delay in Proceedings
¶ 45 Finally, plaintiff argues that the trial court erred by unnecessarily causing delays in the
resolution of this matter. Because we are reversing and remanding for a hearing on plaintiff’s
petitions, we need not address this argument.
¶ 46 III. CONCLUSION
¶ 47 In conclusion, plaintiff’s first and second petitions presented contested cases. Therefore,
for the foregoing reasons, the order of the circuit court of Winnebago County is reversed, the final
decision by the Department is vacated, and this cause is remanded to the Department for further
review, evaluation, findings, and decision consistent with this opinion.
¶ 48 Circuit court judgment reversed.
¶ 49 Department decision vacated and remanded.
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2022 IL App (2d) 200460- 14 -
2022 IL App (2d) 200460No. 2-20-0460
Cite as: Nyhammer v. Basta, 2022 IL App (2d) 200460Decision Under Review: Appeal from the Circuit Court of Winnebago County, No. 19-
MR-1106; the Hon. Donna R. Honzel, Judge, presiding.
Attorneys Timothy Scordato, of Northwestern Illinois Area Agency on
for Aging, of Rockford, for appellant.
Appellant:
Attorneys Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz,
for Solicitor General, and Carson R. Griffis, Assistant Attorney
Appellee: General, of counsel), for appellee.
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