PLEADINGS

The pleadings in administrative law cases need not be drafted with the same detail required of pleadings in judicial proceedings. Notice must be reasonable 5 ILCS 100/10-25. For example, the notice of hearing or complaint is required only to advise the responding party of the charges, yet with sufficient information so the responding party will be able to prepare a defense intelligently. Strickland v. Department of Registration and Education, 60 Ill. App. 1, 376 N.E.2d 255 (1st Dist. 1978). The charges must be only sufficiently clear and detailed to enable Respondent to intelligently prepare a defense. Dharmavaram v. Illinois Department of Professional Regulation, 216 Ill. App. 3d 514, 576 N.E. 2d 361 (1^st Dist. 1991). Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 606 N.E. 2d 1111 (1992).

The primary laws applicable to administrative action in Illinois are the Illinois Administrative Procedure Act (IAPA) (5 ILCS 100/1-1 through 100/10-65) which concerns rule-making, rate making and administrative hearings or contested cases; the Administrative Review Law (735 ILCS 5/3-101) which concerns judicial review of administrative actions; the Freedom of Information Act (5 ILCS 140/1) which concerns the inspection, copying, and release of public information, and the Open Meetings Act (5 ILCS 120/1) which concerns the conduct of meetings held by public bodies.

CONTESTED CASES

Section 1-30 of the IAPA defines contested case as an adjudicatory proceeding, not including rate making, rule-making, quasi-laegislative, informational, or similar proceedings, 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.

Section 10-25 of the IAPA sets forth the rights of the parties in a contested case. It specifies that the parties shall be afforded an opportunity for hearing after reasonable notice. The notice shall be served personally or by certified or registered mail, and shall include:

1. a statement of the time, place and nature of the hearing;
2. a statement of the legal authority and jurisdiction under which the hearing is being held;
3. a reference to the particular sections of the substantive and procedural statues and issues involved;
4. except where a more detailed statement is otherwise provided for by law, a short and plain statement of the matters asserted, the consequences of a failure to respond, and the official file or reference number
5. the names and mailing addresses of the administrative law judge, all parties, and all other persons to whom the agency gives notice of the hearing unless otherwise confidential by law.

RIGHT TO COUNSEL

Section 10-25 also provides that an opportunity shall be afforded to all parties to be represented by legal counsel and to respond and present evidence and argument. The right to counsel in an administrative hearing is often provided in the statute that grants the agency its power or in the Department's rules. For example, 77 Ill. Adm code 100.4(a) provides that a party may be represented by counsel in hearings before the Department of Public Health, and 68 Ill. Adm. Code 1110.90 allows a party to be represented by counsel in hearings at the Department of Professional Regulation

When a statute does not provide a right to counsel, the courts have found that one may be implied. Brown v. Air Pollution Control Bd., 37 Ill 2d 450, 227 N.E.2d 754 (1967), Ullmen v. Department of Registration and Education, 67 Ill. App. 3d 519 385 N.E.2d 58 (1st Dist. 1978).

JURISDICTION AND VENUE

Section 10-25(a)(2) of the IAPA requires, in a contested case, that the notice include a statement of the jurisdiction under which the hearing is to be held (subject matter). Agency jurisdiction refers to the authority to hear and decide a case and does not depend on the correctness of the decision made. County of Knox ex Rel. Masterson v. Highlands, L.L 302 Ill. App. 3d 342, 705 N.E.2d 128 (4^th dist. 1998);One Way Liquors, Inc. v. Byme, 105 Ill. App. 3d 856 (1st Dist. 1982). Such jurisdiction includes the authority to make a wrong, as well as a right, decision.

Practice Tip: The practitioner may consider seeking to enjoin an agency proceeding when an administrative body's jurisdiction is attacked on its face on the ground that it is not authorized by statute. Lake County State's Attorney v. Human Rights Comm'n, 200 Ill. App. 3d 151 (2^nd Dist. 1990). However, when a reasonable question exists as to the agency's jurisdiction, the initial determination should be made by the agency itself. Endicott Johnson Corp. v. Perldns, 317 U.S. 501 (1943); Scott v. Association for Childbirth at Home, Int'l, 88 Ill 2d 279 1981).

Venue is determined by the statute under which the agency is operating or by validly promulgated agency rule.

TYPES OF ADMINISTRATIVE PROCEEDINGS

1. Enforcement or disciplinary proceeding in which the administrative agency is seeking to enforce a license provision or discipline a licensee or substantiate initial findings of a violation of the administrative law or agency rules.

1. Referee proceeding, which more closely resembles a trial; a party not associated with the agency conducting the hearing brings, a complaint or makes a claim. The administrative agency conducting this hearing is a disinterested trier of facts rather than a party.

• Illinois Department of Employment Security
• Illinois Industrial Commission
• Illinois Human Rights Commission-adjudicates claims that are investigated by the Illinois Human Rights Commission
• Pollution Control Board

There is no statute with general applicability providing for discovery in Illinois administrative proceedings. The topic, in fact, is not discussed in the Illinois Administrative Procedure Act. While the Administrative Procedure Act does address contested cases, each agency has discretion to implement procedures as necessary to carry out its mandate. Therefore, pre-hearing discovery rules vary from agency to agency almost as much as the agencies differ themselves. One must look elsewhere, such as to case law, in determining what, if any, pre-hearing discovery is available to a party in an administrative hearing in Illinois.

ADMINISTRATIVE AGENCY RULES

It is essential for any attorney representing a client before an administrative agency to examine carefully the rules and regulations promulgated by the agency and then to review the actual practices of the agency to determine what it does or does not allow. Upon reading and understanding these rules, an attorney should discuss with either the hearing officer or the attorney for the agency whether those rules have been expanded in practice. Some agencies' attorneys will give information far in excess of that required by agency rules, while others will limit themselves strictly to the rules as promulgated. Depositions are another area in which agency rules vary widely.

Examples:

1. Human Rights Commission allows requests for the production of documents and interrogatories. The types of discovery of information from Parties and witnesses shall be the same as in other civil cases in the circuit courts of this State, except as provided for discovery depositions. A Party may take discovery depositions either for good cause shown or by agreement. A discovery disposition taken for good cause or by agreement may be taken only upon leave of the Administrative Law Judge. No Party shall serve a notice of deposition for a discovery deposition without leave of the Administrative Law Judge. 56 111. Adm. Code sec. 5300.720.
2. Department of Professional Regulation does not permit interrogatories, but it does require disclosure of the names of potential witnesses, potential exhibits, exculpatory evidence, and any interviews of the licensee or respondent. 68 111. Adm. Code sections. 1110.130(b) and 1110.130(d). 68 111. Adm. Code sec. 1110.130(f), relating to a hearing before the Department of Professional Regulation, provide: Upon a written request served on the registrant, at any time after a Complaint is filed, or at any stage of the hearing, the registrant will be required to produce documents, books, records or other evidence which relate directly to conduct of the trade, occupation, or profession. 225 ILCS 60/38 states that a physician can be disciplined for failure to cooperate and furnish investigators with relevant information requested by the Illinois Department of Professional Regulation.
3. Civil Service Commission allows for "interviews" of witnesses and evidentiary depositions, 80 Ill. Adm. Code sec. 1.220.
4. Department of Public Health allows depositions generally, and its scope of discovery is the same as provided in the Illinois Supreme Court Rules unless otherwise limited by rule, 77 Ill. Adm. Code sec. 100.13.
5. Illinois Racing Board General discovery provision 11 Ill. Adm. Code 204.65. 11 Ill. Adm. Code sec. 204.90 allows depositions only where reasonably required.
6. Department of Natural Resources The Hearing Officer may order production of documents or things, depositions, or interrogatories in his discretion upon the written request of any party or by the Department on its own motion, either by an order directed to a party or by subpoena directed to a non-party. 17 Ill. Adm. Code 3730.208.
7. Department of Financial Institutions The following discovery procedures may be ordered by the Hearing Officer upon the Hearing Officer's initiative or upon the written request of any party where necessary to expedite the proceedings, to ensure a clear or concise record, to ensure a fair opportunity to prepare for the hearing, or to avoid surprise at the hearing:

1) production of documents or things;

2) depositions;

3) interrogatories. 38 Ill. Adm. Code 1075.990.

8. Pollution Control Board The hearing officer may, on his or her own motion or on the motion of any party, order the production of information that is relevant to the matter under consideration. The hearing officer will deny, limit or condition the production of information when necessary to prevent undue delay, undue expense, or harassment, or to protect materials from disclosure. 35 Ill. Adm. Code 101.614. Regarding any matter not privileged, the hearing officer may order a party to produce documents and to state the identity and location of persons with knowledge of facts upon the written request of any party when parties cannot agree on the legitimate scope of the requests. 35 Ill. Adm. Code 106.724 (b).
9. Office of Banks and Real Estate Upon application to the hearing officer by any party, the hearing officer may issue a subpoena for attendance at deposition or hearing, which may include a command to produce books, papers, documents or tangible things designated therein and reasonably necessary to the resolution of the matter under consideration. 38 Ill. Adm. Code 1075.990.
10. Department of Insurance The following discovery procedures shall be ordered by the Hearing Officer upon the written request of any party where necessary to expedite the proceedings, to ensure a clear or concise record, to ensure a fair opportunity to prepare for the hearing, or to avoid surprise at the hearing:

3) a description of any other evidence, which may be offered.

Whether or not a request is made, during discovery a respondent shall be entitled to:

CASE LAW

1. Kankakeeland Community Action Program, Inc. vs. Department Of Commerce And Community Affairs et al., 197 111. App. 3d 1067 (1 Dist. 1990), the court held that production of original documents was not required, where the requester had copies of the Department's documents in final draft form, and the hearing officer stated that he would order the production of any documents shown to be relevant, where no FOIA request for any documents had not been made.
2. Lebajo v. Department of Public Aid, 210 Ill. App. 3d 263, 569 N.E.2d 70 (1^st Dist. 1991). Party allowed to view any document that a witness uses to refresh his or her recollection prior to trial.
3. Montgomery v. Department of Registration and Education, 146 Ill. App. 3d 222 (1st Dist. 1986), the court held that agencies are required to disclose information that might be helpful, and an agency may not refuse to disclose information solely on the basis of the agency's own rules, without regard to whether the disclosure would be helpful.
4. Wegmann v. Department of Registration and Education, 61 111. App. 3d 352 (1st Dist. 1978), (court held that the dentist was not prejudiced by moving forward because no documents were admitted in evidence and the only witnesses against him were those he already knew and was prepared for).
5. McCabe v. Department of Registration and Education, 90 Ill. App. 3d 1123 (1st Dist. 1980), cert. denied, 454 U.S. 838 (1981). The purpose of pretrial discovery is to aid the party in the preparation and presentation of his case or defense, and to eliminate surprise as much as possible. In an administrative proceeding, an agency is required to disclose evidence in its possession, which might be helpful to an accused.
6. Greco v. State Police Merit Board, 105 Ill. App. 2d 186 (1st Dist. 1969). It has been held that access to pretrial statements of opposition witnesses who testify is necessary for the adequate presentation of a defense in federal administrative proceedings. We can see every reason for requiring production of such items in state administrative proceedings as well, and can find no valid argument against such requirement. Witness statements were disclosed because they allowed a full cross-examination of witnesses to occur. This basis would apply in all administrative proceedings.
7. Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), a party may be entitled to a pre-termination hearing before being deprived of a property right, the definition of which includes public employment under civil service protection. Subsequent to Loudermill, the Illinois Department of Central Management Services promulgated a new rule requiring the State to provide a statement of charges in support of the proposed discipline before the state suspends or discharges a certified employee.
8. Comito v. Police Board of Chicago, 317 Ill. App. 3d 677, 739 N.E. 2d 942 (1^st Dist, 2000). Discussion of how to handle violations of discovery.
9. E&E Hauling v. Pollution Control Board, 107 Ill. 2d 33, 481 N.E.2d 664 (1985). Disqualification of ALJ for bias or conflict of interest.

MEDICAL ISSUES

Medical Studies Act -735 ILCS 5/8-2101

Medical Practice Act-225 ILCS 60/38

Mental Health and Developmental Disabilities Act-740 ILCS 110/10

Illinois Hospital Licensing Act-210 ILCS 85/6

Medical Patient Rights Act-410 ILCS 50/3

HIPAA-Health Insurance Portability and Accountability Act of 1996-45 CFR 160 and 164

-Disclosure for judicial and administrative proceedings-45 CFR 164.512(e)

Doe v. Illinois Department of Professional Regulation, 2003 WL 2145669, 2003 Ill. App. LEXIS 790 (1^st Dist). 740 Ill. Comp. Stat. Ann. 110/7(a) applied to the disciplinary proceeding against the patient's psychiatrist, because § 7(a) clearly stated that, when a therapist was being reviewed for purposes of licensure, a patient's record could be used. When the Illinois Mental Health and Developmental Disabilities Confidentiality Act was read as a whole, it was clear that the legislature contemplated the use of mental health records for which no consent had been secured in certain judicial proceedings.

People ex rel. Illinois Department of Professional Regulation v. Manos, 202 Ill. 2d 563, 782 N.E. 2d 237 (2002). The state supreme court held that (1) dentists were surgeons for purposes of 735 Ill. Comp. Stat. Ann. 5/8-802, and they could claim the physician-patient privilege; (2) investigations conducted by the Department were not listed as an exception to the physician-patient privilege under 735 Ill. Comp. Stat. Ann. 5/8-802, and the Department could not compel the dentists to provide confidential information on their patients; and (3) the Department could not compel the dentists to release sanitized versions of their patient records because releasing sanitized versions would violate the physician-patient privilege.

Goldberg v. Davis, 151 Ill. 2d 267, 602 N.E. 2d 812 (1972). The court held that the trial court did not abuse its discretion when it ordered the treating physician to produce all medical records for an in camera inspection. In making its decision the court looked at the requirements of the Illinois Mental Health and Developmental Disabilities Confidentiality The court held (1) the complaining witness had introduced her mental condition or the services received for such condition as an element of her claim, as required by the Act, (2) the records were relevant to the complaint, and the in camera inspection was imperative to the resolution of the claim, as required by the Act.

FIFTH AMENDMENT RIGHT

The Fifth Amendment may be asserted to protect against potentially incriminating testimony or personal records-Department of Regulation and Education v. Schmidt, 196 Ill. App. 3d 628, 554 N.E. 2d 390 (1^st Dist. 1990).

FREEDOM OF INFORMATION

When a governmental body is involved in the proceeding, it is possible to obtain information pertaining to the case by making a request under the Freedom of Information Act. 5 ILCS 140/1, et seq. There is an exception in the Act for investigator records compiled for State or local administrative law enforcement purposes to the extent that disclosure would:

DISCOVERY REQUESTS

If the agency rules provide that depositions can be taken when they are reasonably required, there should be a motion requesting leave to take depositions and a showing that the deposition is reasonably required. Agency rules must be closely followed when information is deemed necessary, since untimely or improper requests may be denied and a hearing may take place without the information being granted. See Wegmann v. Department of Registration and Education, 61 111. App. 3d 352 (1st Dist. 1978).

Checklist Of Discovery:

a. interrogatories;

b. depositions;

c. notices to produce;

d. requests to admit; and

e. freedom of information requests.

Information To Request:

a. names of witnesses who may testify;

b. lists and copies of any documents to be introduced into evidence;

c. any exculpatory information, which may prove helpful to your client;

d. any investigative reports prepared by the agency;

e. any verbatim transcripts regarding the matters at issue;

f. any tapes or videos regarding the matters at issue;

g. any medical, dental, or other professional records applicable to a proceeding;

h. any statement taken from or given by your client; and

i. any records the administrative agency may have that are relevant to the matters at issue. The types of helpful or potentially helpful information, of course, are infinite in number and must be adapted on a case-by-case basis. The attorney should, therefore, be careful to obtain complete discovery in keeping with the client's best interests.

MEANS OF ENFORCEMENT

The right to discovery is of questionable value when there is no method to enforce that right. An administrative agency may serve not only as a decision maker but also as the prosecuting attorney and investigator. In addition, the agency may promulgate the rules of procedure. These rules can limit the type of relief and/or power of a hearing officer to rule on discovery requests. An agency could simply provide no means for the enforcement of discovery or provide limited means of enforcement. 68 Ill. Adm. Code sec. 1110.130(a). This section, relating to hearings before the Department of Professional Regulation, provides that discovery shall not be the subject of motions except when a motion is made seeking dismissal or default based on a failure to comply with discovery. This type of all-or-nothing provision creates a problem when there has not been a failure to comply but only a delay. The hearing officer cannot, by rule, issue an order to compel discovery by a certain date and may not be willing to dismiss or default a party due to a mere delay.

Even when a hearing officer has the power to require a person to submit to some means of discovery, the administrative rules are deficient in specifying the means of enforcement. See 11 Ill. Adm. Code sec. 204.90(c), relating to hearings before the Illinois Racing Board. While the courts have a broad range of enforcement powers, the hearing officers or boards often lack such power, making discovery more difficult to obtain in an administrative proceeding.