Following the Chair’s Column regarding the revised ISBA Administrative Law Handbook to be published soon, Jewel Klein analyzes the recent Fourth District Illinois Appellate decision in Poindexter v. State of Illinois. That case, set in a Medicaid context, includes complex administrative law issues which Jewel renders less complex. The final article this month is a summary of a presentation by Cynthia Gray, Director of the American Judicature Society’s Center for Judicial Ethics, regarding the proper way for hearing officers to conduct administrative proceedings in which one of the parties is self-represented. Her remarks provide a blueprint for all of us with respect to the treatment to accord to pro se individuals.
Here is something to consider regarding the misuse of language commonly employed by administrative law practitioners. The Editor commends to all readers the well-written majority and dissenting opinions in the Second Circuit Court of Appeals decision in Zhong v. U.S. Dep’t of Justice, No. 02-4882. It is an immigration case decided January 17, 2007 which—like the Poindexter case that is the subject of Jewel Klein’s article in this issue—deals in part with the administrative law doctrine of exhaustion of administrative remedies. In her dissent, Judge Amalya Kearse, quoting Booth v. Churner, 532 U.S. 731, 738-39 (2001), reminds us that “the word ‘exhausted’ has a decidedly procedural emphasis. It makes sense only in referring to the procedural means, not the particular relief ordered.” To put the matter succinctly, “one ‘exhausts’ processes, not forms of relief.” Think about that the next time you refer to the doctrine of exhaustion of administrative remedies.
The Handbook of Illinois Administrative Law was last published in April 2001. With any legal treatise, constant revisions are required in order to keep practitioners updated on the latest developments in their field. Administrative law is no exception. As you can imagine, there is no shortage of new information to pass on to you with more than five years of new case law and statutory changes.
The project to rewrite our scholarly publication began in earnest in 2006 and while we have fallen behind in our original timetable, it is my fervent hope that the current edition will be available this summer. My sincere thanks go to Bill Price, who along with myself, is serving as co-editor of the undertaking. Bill, however, deserves the credit for doing most, if not all, of the project’s heavy lifting. Thanks are also due to the volunteer authors who will make this update possible.
For those of you who do not know, the handbook has a long and storied history dating back some 20 years. The publication originally grew out of the cooperative efforts of the Government Bar Association and our section council. What resulted was the Handbook for Government Lawyers that updated the 1991 IICLE treatise Illinois Administrative Law. The handbook later became the work of our section council when the ISBA assumed responsibility for the publication. Since that time, periodic revisions have followed.
Current Section Council members who have agreed to contribute to the 2007 update include Ann Breen-Greco, Carl Draper, Cindy Ervin, James Goldberg, Patti Gregory-Chang, Marc Loro, Bill Price, Ed Schoenbaum, and Julie Ann Sebastian. From these talented authors and others, you can expect rewrites of existing chapters dealing with the Open Meetings and Freedom of Information Acts, rulemaking before the Joint Committee on Administrative Rules, the Attorney General’s office, and attorney fees, to name just a few. You can also look for new chapters on property tax appeal hearings, municipal administrative law, administrative review and common law certiorari from both a private and government practitioner’s perspective, administrative law judges, and informal process.
I expect the latest handbook update will be well worth the wait and a wonderful addition to your law library.
James W. Chipman
If you are looking for a primer on exhaustion of administrative remedies, the necessity of making constitutional challenges at the agency level, and federal preemption of state law, the Fourth District’s opinion in Poindexter v. State of Illinois, 2006 WL 3628956 (2006) will come in handy. The issue in Poindexter was whether the Medical Catastrophic Coverage Act of 1988, 42 U.S.C. § 1396r-5 (2000) (“MCCA”), preempts the spousal-support provisions of article X of the Illinois Public Aid Code, 305 ILCS 5/10-1 through 10-27 (West 2004).
The plaintiffs were each a “community spouse” of an “institutional spouse”2 and they sued to enjoin the Illinois Department of Public Aid (“IDPA”) and the Illinois Department of Human Services (“IDHS”) (collectively the “State”) from seeking any support from their income while their spouses were in long-term-care facilities and receiving Medicaid. The trial court issued the injunction and the State appealed.
Plaintiffs’ argument was centered on the language in the MCCA that “no income of the community spouse shall be deemed available to the institutionalized spouse.” 42 U.S.C. § 1396r-5 (b)(1) (2000). On appeal, the State argued that the trial court had no jurisdiction since the plaintiffs had failed to exhaust their administrative remedies and had waived their constitutional challenge, and that the federal statute not only meant something other than what it said, but also that the federal statute did not preempt the State from its collection efforts.
Relying on Canel v. Topinka, 212 Ill.2d 311 (2004) (exhaustion not required where a statute, ordinance, or rule is attacked as unconstitutional, where issues of fact are not present and agency expertise is not involved, where the administrative remedy is inadequate or futile, or where litigants will be subjected to irreparable injury due to lengthy administrative procedures that provide no interim relief) and Landfill, Inc. v. Pollution Control Bd., 74 Ill.2d 520 (1978), the Poindexter court made short shrift of the exhaustion argument. Recognizing that although exhaustion of administrative remedies is generally required before agency action may be challenged in court, this case fell within the exception because plaintiffs challenged the State’s efforts to collect from them as unauthorized and there were no questions of fact. The issue was purely legal.
The State’s next argument was the kind (respectfully) that lawyers love. The State claimed that plaintiffs forfeited their constitutional claims because they did not raise them before the administrative agencies, the very place where plaintiffs chose not to go at all because they believed that avenue would be futile. The State relied on the general proposition stated in the Supreme Court’s decision in Arvia v. Madigan, 209 Ill.2d 520, 526 (2004) that “issues and defenses not raised before the administrative agency are deemed waived and cannot be raised for the first time on administrative review.”
The State’s waiver argument was not persuasive in Poindexter as the court, after stating the general rule, quickly located and relied upon the language in Arvia which advises that the high court has never adopted “a bright-line rule” that all issues have to be raised before the agency.3 Moreover, since state agencies do not have the power to declare their own statutes unconstitutional, a frontal attack on the constitutionality of a statute is not one which would necessarily benefit from the agency’s opportunity to develop evidence refuting the constitutional challenge.
After rejecting the State’s arguments about exhaustion and waiver, the Poindexter court turned its attention to the issue of federal preemption. To determine whether Congress intended that the federal statute preempt state law required an analysis of whether Congress did so “expressly, by implication, or through a conflict between federal and state law, such that it would be impossible to comply with both.”4 The analysis begins with the “basic assumption that Congress did not intend to displace state law.”5 Finding no language in the MCCA indicating that Congress expressly or by implication intended to preempt state law, the Court next turned its intention to whether it was impossible to comply with both the federal and state law.
The Poindexter court stated that it would begin its analysis with the pertinent language of the MCCA. As noted above, the language at issue was the provision that “no income of the community spouse shall be deemed available to the institutionalized spouse.” In the December 2006 issue of this newsletter,6 Vickie Gillio wrote a wonderful article about Dusthimer v. Board of Trustees of Univ. of Ill., 368 Ill.App. 3d 159 (4th Dist. 2006), in which the Fourth District held that an administrative regulation meant what it said. In Poindexter, the Fourth District recognized the “opacity of Medicaid law,” the interpretation of which “is fraught with difficulty.”7 Ultimately, this court determined that the Medicaid statute did not mean what it said.
Parenthetically, I note at this point that my efforts to understand the term “community spouse” made me realize the difficulty of interpreting the Medicaid statute. In the Medicaid context, “institutionalized spouse” is easy to understand. Intuitively, it means a spouse in a medical institution or a nursing facility (and not someone in prison).
“Community spouse” on the other hand is an intriguing term. Did it mean more than the person married to an “institutionalized spouse”? Were common law marriages and gay partners included? Slogging through 42 U.S.C. § 1396r-5 to get to section (h), I landed on the eighth page of Westlaw’s single spaced version of the statute, to discover that the genius who wrote the statute put the definitions at the very end. Apparently, the author intended that the reader would have to read the eight pages which repeatedly use these terms before understanding what they mean.8
It turns out that “community spouse” has no unexpected meaning. The “institutionalized spouse” is an individual who is in a medical institution or a nursing facility and is “married to a spouse who is not in a medical institution or a nursing facility.” 42 U.S.C. § 1396r-5 (h)(1). “Community spouse” means “the spouse of an institutionalized spouse,” 42 U.S.C. § 1396r-5 (h)(2), but I digress.
Explaining that the term “deemed” is a term of art in the Medicaid context, the Poindexter court determined that Congress left the states’ family responsibility laws intact9 and did not intend to preempt the field as Medicaid is a “payer of last resort.”10 In a detailed review of the broader context of the Medicaid statutes, the legislative history, federal administrative regulations and decisions in other states, the Poindexter court determined that the trial court had erred and reversed the injunction.
Justice Knecht filed a short dissent because he believed that the purpose of the MCCA was to protect the income of a community spouse from being required to support his/her institutionalized spouse. The State had argued that if the federal statute preempted state law, persons with high incomes would not have to contribute to the care of their institutionalized spouses. Justice Knecht responded that this was a “question of policy” and it was the court’s job to interpret a statute as it was written.11
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1. The author is a Chicago practitioner and a member of the Administrative Law Section Council.
2. Those terms are defined in 42 U.S.C. § 1396r-5(h) (2000). More on the definitions later.
3. Arvia, 209 Ill.2d at 527.
4. Poindexter, 2006 WL 3628956, *4.
5. Poindexter, op. cit. citing Valstad v. Cipriano, 357 Ill. App. 3d 905, 922-24 (2005) which analyzed whether the federal Clean Water Act preempted Illinois laws requiring quarry owners to pay fees for National Pollutant Discharge Elimination System permits.
6. Vol. 36, No. 6.
7. Poindexter, 2006 WL 3628956, *5.
8. My husband had a partner who explained once that he wrote unnecessarily verbose and complex contracts so that he would be the only one to understand them and thus be hired to interpret the contract when disputes arose. Perhaps a similar mentality makes the Medicaid statute so difficult to comprehend that only those who enforce the statute can interpret it.
9. Poindexter, 2006 WL 3628956, *8. The statute commonly known as the “family expense” statute, 750 ILCS 65/15, contained incongruously in the “Rights of Married Persons Act,” makes Illinois spouses liable for each other’s “expenses of the family” which has included medical expenses since at least 1887. Cole v. Bentley, 26 Ill.App. 260 (1887).
10. Poindexter, slip op. at 14, quoting Arkansas Dep’t of Health & Human Services v. Ahlborn, __ U.S. __, __, 164 L.Ed. 2d 459, 478 (additional references omitted).
11. Poindexter, 2006 WL 3628956, *10.
On January 8, 2007, Cynthia Gray, Director of the Center for Judicial Ethics of the American Judicature Society (AJS), spoke to the Administrative Law Judges Committee of the Chicago Bar Association. She is the author of a 2005 book, published by AJS’ State Justice Institute. The subject of her speech, and the title of her book, is the same as the heading of this article which is my summary of her remarks.
As will be observed, Ms. Gray’s address was thoughtful and insightful. The justice system will benefit from paying attention to her comments. They apply equally to both judicial officers and ALJs, especially when judges and administrative hearing officers are dealing with parties who are appearing pro se. Indeed, she has provided a blueprint for conduct by all of us when we are engaged in matters involving self-represented parties.
Ms. Gray began her talk with four premises:
1. Procedural rules should work to do substantial justice.
2. Cases should be decided on the merits.
3. A hearing officer is not a mere moderator, referee or spectator.
4. A hearing officer should promote public confidence in the tribunal in which the officer sits.
Next, Ms. Gray stated that her thesis is the following: “Without raising reasonable questions about impartiality, judges may exercise discretion to make equitable, procedural accommodations and to provide self-represented parties a reasonable opportunity to have their cases heard.” To this end, hearing officers should engage in such practices as:
1. Liberally construing pleadings by overlooking a failure to cite correct legal theories, looking behind a document’s label or title, overlooking poor syntax, sentence construction and irrelevant details, giving consideration to the pro se parties’ other submissions, and freely allowing amendments;
2. Allowing reasonable continuances to enable a pro se party to hire a lawyer and to prepare the case;
3. Explaining the basis for rulings, including providing information with regard to defects in pleadings;
4. Ensuring that orders which are entered are clear; and
5. Using plain English.
The most important principle to which hearing officers should adhere is to treat pro se parties fairly and equally, and with courtesy, dignity, and respect. This means avoiding disdainful comments or and even disdainful tones of voice, needlessly interrupting, making negative comments about self-representation, treating attorneys with familiarity, or addressing pro se parties less formally than counsel. Moreover, hearing officers should both listen and act as if they are listening, and they should require courteous treatment of self-represented persons by the tribunal’s staff, and by attorneys and the other parties.
Ms. Gray cited some dreadful examples of improper conduct towards pro se parties. For example, in a Washington State case, In re Eiler, the presiding judge was reported to have chastised, belittled and berated some pro se litigants, to have interrupted without justification, and to have said “If you want to lose, annoy me.” Somewhat similarly, in the New York case of In the Matter of Williams, judgment was entered for the plaintiff-landlord in an eviction lawsuit without according the self-represented tenant a full opportunity to be heard on the issue of rent abatement. In In re O’Dea, 622 A.2d 507 (Vt. 1993), the judge unreasonably refused to grant a continuance to a pro se litigant, cut off that litigant’s attempt to cross-examine witnesses, and gave the litigant no opportunity to present testimony or evidence.
Under the heading of accommodations, Ms. Gray said that hearing officers should direct self-represented parties to available, helpful resources and should provide an introduction to courtroom protocol. Cases should be decided on the merits if at all possible, not on the basis of technicalities. A settlement should not be approved without a determination that a pro se individual’s waiver of substantive rights is knowing and voluntary.
Ms. Gray stated that where it is obvious what a pro se party is trying to achieve, the party should be provided with at least some instruction as to what to do. This means that process, elements of a claim, the burden of proof, and fundamental evidentiary principles should be explained, clarifying questions should be asked, attention should be called to evidentiary omissions, and the rules of evidence should be relaxed where appropriate.
Ms. Gray referred to Breck v. Ulmer, 745 P.2d 66 (Alas. 1987), where it was held that discretion had been abused because no explanation was given to a pro se litigant as to how to intervene even though she had a right to do so and had clearly explained that she wanted to do so. By contrast, in Oko v. Rogers, 466 N.E.2d 658 (Ill.App. 1984), the judge patiently explained what was needed, pointed out rules and procedures, and asked some questions of witnesses. In Paulding-Putnam v. Kuhlman, 690 N.E.2d 52 (Ohio App. 1998), the judge explained how trials are conducted and asked questions in order to bring out evidence leading to a correct and impartial decision.
Issues pertaining to statutes of limitation may be more complex. A pro se litigant does not have the legal training to recognize and put the correct name to every defense. If there is at least a “skeletal argument” that is meritorious, and no prejudice to the adverse party, the final decision should not be based unnecessarily on untimeliness. Cottrill v. Cottrill, 63 S.E.2d 609 (W.Va. 2006). The authorities are not entirely consistent, however, with regard to dealing with statutes of limitation. It has been said that a court’s impartiality may be brought into question if a statute of limitations defense is raised sua sponte on behalf of pro se defendants (Maryland Advisory Opin. 06-1), but the same body has opined that a judge may, sua sponte, raise a statute of limitations defense on behalf of self-represented defendants in a Fair Debt Collection Practices Act case (Maryland Advisory Opin. 06-5).
Hearing officers make unreasonable accommodations if they create claims or defenses for the pro se party, amend or redraft pleadings, assume facts not in evidence, or disregard substantive law or jurisdictional requirements. A diligent party should be accommodated if he or she attempts to acquire familiarity with applicable rules, complies with procedures and orders, requests reasonable assistance, files pleadings, and offers support for arguments. A non-diligent party is one who abuses the dignity of the hearing room, is grossly negligent, lacks good faith, engages in a pattern of delay, or deliberately fails to comply with clear, specific orders.
Ms. Gray noted that arguments have been made against the proposition that hearing officers should assist pro se parties. Some critics say that providing such assistance unduly encourages self-representation, promotes undesirable and open-ended participation by the hearing officer, and even favors self-represented parties over represented ones (particularly those who are poorly represented). The bottom line, however, is that a hearing officer should be fair to all parties, may need to relax some rules for parties appearing pro se, but must never become an advocate for either side.