SHARON CURRY v. THE STATE OF ILLINOIS (2003)

OPINION

This administrative litigation expense claim, brought pursuant to/10-55(a) of the Administrative Procedure Act (the APA) (5 ILCS 100/10-55(a)), and arising out of the claimant's successful defense and expungement of a charge (an indicated finding of child neglect) by the respondent's Department of Children and Family Services (DCFS) pursuant to the Abused and Neglected Child Reporting Act (325 ILCS 5) (the ANCRA), is before the court for final determination after a hearing before our late Commissioner, Nancy Owen.

The Core Facts

Claimant Sharon Curry, a licensed practical nurse who was working as a child caretaker at a central Illinois health care facility in 1995, was one of three care givers at the facility who received an indicated finding of child neglect (and a listing of that indicated finding on the state central register) by DCFS in connection with the death of a patient, David Crouch.

David Crouch was a very active child who suffered from mental and physical developmental problems; he was one of Ms. Curry's 20+ charges at the facility. Young Mr. Crouch died in a wheelchair, which had a defective foot strap, when he apparently worked loose and slipped down in the chair and suffocated by choking on a restraining belt between staff checks on him.

Claimant Curry [and her supervisor] requested a hearing to contest the indicated finding pursuant to ANCRA/7.16, which was conducted by DCFS administrative law judge Ann Breen-Greco on October 31, 1997. At the hearing, the DCFS investigator essentially recanted her findings that Ms. Curry was responsible or neglectful in Mr. Crouch's death, which she had initially found largely on the assumption that Ms. Curry was responsible in part for the condition of Mr. Crouch's wheelchair. In her findings and conclusions, which recommended expungement of the indicated finding against Ms. Curry (and her supervisor), ALJ Breen-Greco found, inter alia:

The Department investigator ... reversed her original finding that Curry and [her supervisor] were in blatant disregard of their caretaker responsibility.

The [ALJ] finds that Curry and [her supervisor] appropriately carried out their caretaker responsibilities.

* * *

With regard to Curry, the evidence demonstrates and is unrebutted that Curry carried out her responsibilities under extremely difficult circumstances. On the night in question, she administered his ear drops. The minor was taken to dinner by [another staffer]. Curry continued with all her other responsibilities in the care of twenty ... residents, which included administering medication and ... tube feedings. She was gone from 6:30 p.m. to 7:00 p.m. to dinner. * * *

... Public Health regulations require only a check every two hours. ... this minor ... was seen more often by staff .... * * *

Curry ... returned at 7:00 p.m. * * * At 7:20 p.m. she found the minor and did what she could, using emergency resuscitation ....

There is no rule Curry violated. There is no responsibility that she neglected.

* * * The ... evidence demonstrates that ... the child's teacher, reported the disrepair of the child's wheelchair straps .... * * * The Department has presented no evidence that the wheelchair repair was the responsibility of [Curry and her supervisor].

There is no evidence that there is any act that [Curry and her supervisor] should have or could have taken that would [have] resulted in repair of the wheelchair.

DCFS Director Jess McDonald adopted those findings and granted expungement. Ms. Curry requested reimbursement of her defense expenses, primarily attorney's fees, which was refused.

This claim

Ms. Curry then came to this court, where she seeks $5,136.31 reimbursement of her attorney's fees and litigation expenses pursuant to APA/10-55(a), alleging inter alia that the indicated finding against her was made without reasonable cause and [was] found to be untrue, which is the crux of a/10-55(a) expense claim. We have jurisdiction over this/10-55(a) expense claim under/8(i) of the Court of Claims Act (705 ILCS 505/8(i)).

The elements of a/10-55(a) claim, in the statutory language, are as follows [numbers added]:

(a) In any [1] contested case [2] initiated by [3] any agency [4] that does not proceed to court for judicial review ... any [5] allegation made by the agency [6] without reasonable cause and [7] found to be untrue shall subject the agency ... to the payment of the reasonable expenses, including attorney's fees, actually incurred in defending against the allegation .... * * *

As in most/10-55(a) cases, the parties primary dispute is the without reasonable cause element. In this case, there is no question that the allegations in the indicated finding were made by DCFS and were found to be untrue by the ALJ and the Director. Similarly, it is clear that DCFS is an agency (as defined in APA/1-20) and that the case did not reach judicial review.

However, whether or not the ANCRA proceedings in DCFS -- the [1] investigation and the [2] investigator's indicated finding determination, the [3] reconsideration by the investigator at the accused's demand, the [4] amend, expunge ... or remove hearing before the ALJ and the [5] Director's final determination are a single contested case that was initiated by DCFS (in which event APA/10-55(a) would apply) or constitute two or more separate proceedings with the /7.16 evidentiary hearing being a contested case that was initiated by the accused care-giver (in which event APA/10-55(a) would not apply) involves more substantial questions. This court has not fully resolved those issues, and no Illinois reviewing court has apparently addressed them.

Applicability of/10-55(a) to ANCRA procedures: The issues

The court thus examines the applicability of/10-55(a) to the ANCRA administrative proceedings, which we asked the parties to address in supplemental briefs, and which this court previously considered, summarily and only in part, in McHugh v. State of Illinois, 45 Ill.Ct.Cl. 235, 240-241 (1992) (Frederick, J.), when we held:

It is clear that there was a contested case initiated by DCFS which did not proceed to ... judicial review. The expungement appeal process may not have been the proceeding contemplated by the legislature, but such a proceeding does fall within the statutory language.

In this ANCRA case, and in other multi-phase administrative cases arising under other Illinois statutory schemes, the respondent contends that the APA litigation expense remedy of/10-55(a) does not apply because:

1. the initial investigation and determination of indicated finding under ANCRA is a statutorily separate proceeding (initiated by DCFS) from the later expungement hearing, which must be requested, hence initiated, by the accused care-giver;

2. the expungement proceeding is not a contested case as defined by APA/1-30 because (a) no individual rights, duties, or privileges of a party are determined in the ANCRA proceedings (which do not, for example, affect the care-giver's professional [LPN] license), and (b) the DCFS indicated finding occurs before a/7.16 hearing rather than being required by law to be determined by an agency only after an opportunity for a hearing as required by APA/1-30, which remains true even if the entire investigation and hearing process is deemed to be a single case;

3. the court of claims is not bound by stare decisis and is not bound by its prior decision in McHugh v. State of Illinois, supra; and

4. the court should follow In Re the Medical License of Dr. Ricardo Munoz, 101 Ill.App.3d 827, 428 N.E.2d 1137 (1st Dist. 1981), which held that the license dispute there was not a contested case within the meaning of APA/1-30.

The claimant, in turn, argues that:

1. respondent waived all issues as to applicability/10-55(a) to this ANCRA case; it is improper and unfair for the court to raise these issues, which are not jurisdictional;

2. the court is bound by McHugh by stare decisis; McHugh rejected the same appeal initiated by the caregiver argument that the respondent now reargues 10 years later;

3. the state has acquiesced in, and followed, the McHugh construction of APA/10-55(a) and is now collaterally estopped by McHugh from arguing otherwise;

4. a fair reading of the ANCRA procedures reflects that the entire process is a single contested case that is initiated by DCFS;

5. the legislative history of APA/10-55(a) supports the claimant's view and the McHugh interpretation that the ANCRA multi-phase procedures are among the type of administrative proceedings initiated by a state agency that were intended to be covered by the APA/10-55(a) expense remedy.

The scope of/10-55(a): Discussion

First: the easy issues. We reject claimant's waiver and collateral estoppel arguments, along with the respondent's claim that we can freely disregard stare decisis and our McHugh decision, and its contested case argument based on Munoz, supra, which has no bearing here at all.1

Claimant is incorrect on the jurisdictional point. The issue raised by the court is the applicability of APA/10-55(a) to this case. The statutory jurisdiction of this statutory court in this case, as in all/10-55(a) expense claims, is to hear and decide a claim arising under that statutory provision (under/8(i) of the Court of Claims Act); if no claim arises under/10-55(a) because that statute does not apply in a case, then there is nothing over which this court can exercise jurisdiction, except to find that we lack jurisdiction, i.e., that the jurisdictional predicate does not apply.

Claimant is also wrong on collateral estoppel. This claimant was not the same party as the claimant in McHugh; hence the collateral estoppel doctrine does not apply. This is hornbook law.

Although we reject the respondent's cavalier contention that we can throw stare decisis out of the window, this court is not so strictly bound by its precedents that it cannot reconsider them when new or additional arguments are advanced. Although the claimant has pointed out (by review of the arguments advanced in that claim) that the McHugh decision did in fact consider and reject the initiated by the care-giver argument, that is not clear from our opinion nor is the underlying reasoning a matter of record. The precedential weight of that decision is thus debatable.

The initiation issue

However, upon review of the arguments and the statute and its history, the court reaffirms McHugh's implicit holding -- that the ANCRA two-phase proceedings are one administrative proceeding initiated by DCFS for purposes of APA/10-55(a).

First, we agree that a fair overall reading of the process yields but one continuous proceeding, albeit in phases. Although the accused care-giver must request a hearing in order to trigger that phase of the ANCRA process, which does proceed before a distinct forum -- an ALJ of DCFS instead of an investigator of DCFS -- we nonetheless conclude that the adversary hearing before the ALJ is not a separate proceeding that is independently initiated by the administrative respondent.

In ANCRA's procedural scheme, the care-giver is a respondent throughout the process. The/7.16 hearing is a de novo hearing in which DCFS retains the burden of proof on the allegations of abuse or neglect. The hearing effectively starts the fact-finding over at square one, and is thus not an appeal from the investigator's finding. ANCRA procedures more closely resemble a traditional charge-and-trial. Indeed, ANCRA/7.16 imposes a deadline for requesting DCFS to alter the finding, as a statutory precondition for the hearing. In this statutory scheme, the hearing is one phase in a continuing multi-phase process that is initiated by the DCFS investigation.2

Third, the use of the statutorily undefined term initiated in APA/10-55(a) -- which is utilized by the drafters to narrow its applicability to exclude cases that are not initiated by the State -- requires the court to apply the common everyday meaning of the term. As commonly used, one would readily say that DCFS initiated this case but one would not ordinarily say that Ms. Curry initiated a dispute with the DCFS finding by requesting reconsderation and then an evdentiary hearing, both of which are responsive to the DCFS allegations. On this construction point, we are also commanded by the General Assembly to give general undefined terms like initiated a broad, liberal construction to implement the legislative intent (/1.01, Statute on Statutes; 5 ILCS 70/1.01).

We agree with the claimant that the ANCRA process was initiated by the agency (DCFS) within both the language of the statute and its legislative intent as gleaned from the legislative debates, which the parties have both argued here, and which we have once again reviewed in detail. The hearing demand under ANCRA is something less than an initiation of a new contested case.

It seems apparent that the legislature's intent in excluding from APA/10-55(a) those administrative proceedings that are not initiated by a State agency was to cover only cases in which the State is the aggressor and the citizen is the respondent, i.e., not to provide a fee/expense remedy to cases where someone else is the aggressor and where the State is the respondent. The statutory process must be taken as a whole, and not synthetically bifurcated: in these ANCRA proceedings, DCFS is the aggressor. The statute's imposition of a modest procedural burden on the accused care-giver to trigger the hearing by an affirmative act does not alter the nature of the proceedings.

To hold the reverse, as the respondent urges, would dramatically reduce the applicability of the APA/10-55(a) remedy throughout State government by excluding administrative procedures in which a citizen must request a hearing. That was plainly not the legislative intent. We find no hint that the legislature intended to exclude procedures in which the State starts the ball rolling, and a respondent citizen in reaction invokes his or her right to a hearing to try to stop that ball.

Thus, with further consideration and considerably more words and analysis, we come to the identical conclusion that we did a decade ago in McHugh, supra, as to the initiation element of the statute: the ANCRA procedures fall within the legislative intent of APA/10-55(a).

The contested case issues

Respondent's contention that the ANCRA proceedings do not constitute a contested case within the definition of APA/1-30, and thus not within/10-55(a), involves two new and more subtle arguments. These two arguments were not raised or addressed in McHugh, supra.

The first contention is easily rejected. Although respondent is correct that claimant's LPN license was not directly affected by the indicated finding of neglect in this case, it simply cannot be said that there were no individual rights, duties, or privileges of a party that were determined by theat finding (or in another ANCRA case, by an abuse finding). Aside from the indirect impact on licensing and employment privileges, as claimant rightly emphasizes, the accused's good name and professional reputation - which are protected under Illinois common law -- are directly affected and in a practical sense determined. That is enough to satisfy the APA definition.

The second wing of this contested case argument is a closer question. Based on the APA definition of contested case to be proceedings in which the rights ... or privileges involved must be required by law to be determined by an agency only after an opportunity for a hearing (APA/1-30)(emph. added), the respondent forcefully argues that because DCFS can both make and publish (in the state central register of child abuse and neglect created by ANCRA) an indicated finding of child neglect (or abuse) before a hearing under ANCRA ever occurs, the/1-30 definition is unmet putting all ANCRA proceedings outside the reach of the APA expense remedy.

We would likely agree with this technical, but accurate, analysis of the statutory language but for two reasons: (1) the statute's use of the statutorily undefined term determined in/1-30 (defining contested case), and (2) our determination that the applicability of the/10-55(a) remedy should be liberally rather than strictly construed.

The implicit premise of the respondent's argument is that the indicated finding made at the conclusion of the DCFS investigation, i.e., before a hearing, is the dispositive determination under APA/1-30 and /10-55(a). But because that finding is preliminary (and is a unilateral and not a contested determination by the DCFS investigator) and because the/7.16 hearing is a de novo litigation of those findings when it is invoked, and because DCFS has the burden of proof in the hearing, only a narrow and hyper-technical reading of the statute would hold that the investigator's finding is the dispositive determination, rather than the Director's final determination.

We reject such a narrow and contorted reading of the statute in favor of a liberal construction consonant with the legislative intent of/10-55(a): when a de novo hearing is requested and required, the determination of abuse or neglect under ANCRA is not ultimately made until the final administrative decision of the Director (acting on the ALJ's findings and recommendations), which occurs only after an opportunity for a hearing, thus satisfying this statutory element of/10-55(a).

This liberal construction avoids eviscerating the/10-55(a) remedy in Illinois administrative law. If the applicability of this statute were construed narrowly -- to exclude all administrative procedures where a hearing must be requested by the State's target -- then a host of administrative adjudications created by Illinois law would fall outside the reach of/10-55(a) reimbursement. We find nothing in the statute's legislative history (which we also recently reviewed in Haas Baking Co. v. State of Illinois, 54 Ill.Ct.Cl. 296 (2001)) that remotely supports such a narrow scope of/10-55(a).

We also believe that liberal rather than strict interpretation of the applicability of APA/10-55(a) is appropriate as a matter of statutory construction. Although this court has recognized, as precedent compelled, that the administrative expense remedy of/10-55(a) is penal and thus must be applied strictly rather than liberally (see, e.g., Haas Bakery, supra; Hughes, supra), the reach of this statutory remedy stands on quite different ground. This is so for reasons that transpire the liberal construction mandate of the Statute on Statutes (5 ILCS 70/1.01), which also supports this view.

The enactment of/10-55(a) was a legislative extension of the expense sanction (of former /2-61 1 of the Civil Practice Law) to Illinois administrative proceedings; it was also a legislative waiver of sovereign immunity (to authorize recovery from the State). Enactment of/10-55(a) thus doubly reflects a strongly remedial purpose for this expense remedy. That remedial purpose mandates a liberal construction of the statute's applicability to further that legislative purpose (see, e.g., Wilson v. Norfolk & W. Ry. Co., 187 Ill. 2d 369, 718 N.E.2d 172 (1999); Board of Trustees of Southern Illinois Univ. v. Department of Human Rights, 159 Ill. 2d 206, 636 N.E.2d 528 (1994)).

Thus we arrive at the seemingly odd but analytically compelled result of a liberal applicability of a strictly-construed penal remedy. The application of APA/10-55(a) to various administrative procedural schemes must of course be taken up on their individual peculiarities. But this court concludes that/10-55(a) by its terms is applicable to this multi-stage ANCRA proceeding.

The merits

On the merits, this is the most straightforward claim of factually and legally baseless charges that this court has seen in quite some time. We need not and will not look past the findings and conclusions of the ALJ, which are amply supported by the available record, which is limited by the loss of the hearing transcripts by DCFS, of which the claimant rightfully complains mightily.

Although it is this court's duty at this point, not the ALJ's duty, to determine whether the charges were made without reasonable cause, in this case the administrative findings fairly compel that conclusion. The respondent has not come close to justifying the charges against Ms. Curry on any reasonable basis -- and particularly not with the support of actual evidence.

In addition, we agree with the claimant that it was unseemly for the respondent now to attack Ms. Curry and her performance in this court -- not in light of the administrative findings and especially not in light of the respondent's failure to cite any evidence to support these belated charges that belie the ultimate testimony of the DCFS investigator.

The court must make two comments. Although it is now clear, in retrospect, that the sole basis on which the initial indicated finding against Ms. Curry was technically made --i.e., the assumption that she was one of the staff persons responsible for the condition of young Mr. Crouch's wheelchair -- was baseless, it is remarkable to find an investigator who has the fortitude as well as the integrity to reverse a determination in the calmer light of later analysis. The professionalism of this DCFS investigator is the one bright spot in this unfortunate saga.

Second, we recognize that in the delicate area of child abuse, and when a child under care dies in an institution, there can be mistakes made under pressure to allocate fault. In this case, it is clear that nurse Curry deserved no such charge. When as here, a rushed or an innocent error was made, the limited redress afforded by APA/10-55(a) is of some benefit, however tardy. And that, of course, is the ultimate purpose of this statute. In this case, we are pleased to be able to award Ms. Curry her full claim, the amount of which is not contested by the respondent.

Conclusion

For all of the foregoing reasons, it is hereby ORDERED:

1. Claimant Sharon Curry is awarded the sum of $5,135.13 in satisfaction of her claim for administrative litigation expenses in defending the DCFS charges against her;

2. Claimant shall file a supplemental bill of particulars detailing her legal fees and litigation expenses in this court within 28 days after the date of this order;

3. The respondent may file any objections to the supplemental bill of particulars within 14 days after it was due;

4. The court will issue a final amended award thereafter.

EPSTEIN, J.