More will come!
There are certain laws, rules, conventions and practices that most lawyers are aware of and follow - sometimes referred to as “Hornbook Law.” One example is the 30-day limit for filing an appeal. Another example is the strict 35-day limit for filing for administrative review of administrative decisions. This time limit is often said to be so strict that it is jurisdictional, i.e. no exceptions, and not in any way subject to a due process examination. Courts normally do not look at these established tenets of the law. However, when they do all bets may be off.
So much for certainty: the Illinois Supreme Court recently upset Hornbook Law by allowing a late filing of a complaint for administrative review by applying a due process analysis. All involved parties, attorneys and judges agree the filing was one day late when the 35th day fell on a holiday (Labor Day Monday) and the complaint was filed the next day, Tuesday.1
The majority in the Supreme Court hinted that mercy would prevail under the label of “due process” when it viewed the filing as “less than 12 hours short” of the due day. Grimm v. Calica, 2017 IL 120105. Grimm is a lively and interesting case decided by the Illinois Supreme Court shortly after the first of the year, 2017. The court created some new exceptions to the 35 day filing rule for administrative review.
In Grimm, a school teacher was investigated initially by DCFS as a result of a complaint of child abuse of their child filed by her husband. In 2012, DCFS indicated a finding of child abuse after Plaintiff’s husband told the McHenry County sheriff’s office that a day earlier she had struck their six-year-old son twice with a wooden spoon. This was also the day Grimm moved out of the marital residence. The sheriff’s report noted a welt and bruise on the child’s left buttock. Grimm, a teacher sought to expunge such report since she would be unemployable in her profession if such a report remained the State Central Register. In 2013 an administrative law judge conducted a hearing and issued a written opinion recommending that Grimm’s request for expungement be denied.
DCFS issued a decision in a letter from its director, Richard Calica, bearing the date July 30, 2013, at the top and stating:
This represents the final administrative decision of the Department. If you disagree with any part of it, you may seek judicial review under the provision 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 letter did not state that under an Illinois statute the date on the letter is deemed the date of service. Plaintiff filed for administrative review on September 4, 2013, the Tuesday after a court holiday, Labor Day. Surprisingly, all parties agreed that Plaintiff filed on the 36th day and thus did not comply with the statute. The Appellate court stated that she missed her filing deadline by less than 24 hours because of the Labor Day holiday. 400 Ill. Dec. 687.
Unknown to Grimm, under the Administrative Procedures Act, the 35 day period begins on the day of mailing. Nowhere in the letter is the day of mailing stated. Further, the statute containing that information, 735 ILCS 5/3-103 is not stated in the letter or attached.
A DCFS hearing officer made a finding of “indicated” child abuse. Because such a finding would be accessible in the State Central Register it would have an extremely negative effect on her career as a teacher. See, Lyon v. Dep’t of Children & Family Services, 209 Ill. 2d 264, 273-274 (2004). Grimm sought to have that finding expunged and was refused by DCFS.
The Department conceded that Grimm had a constitutionally protected liberty or property interest impacted by the indicated ruling. Grimm at ¶25. Grimm then filed a complaint administratively to review the decision of DCFS that declined to expunge her “indicated” child-abuse finding. The trial court accepted jurisdiction although the complaint for administrative review was filed one day beyond the statutory deadline of 35 days stated in the Administrative Review Act. 735 ILCS 5/3-103. The trial court accepted jurisdiction and ruled that the Department’s decision was “clearly erroneous” and reversed it. The Second District appellate court affirmed, finding that the letter from the Department was in effect misleading and not “well calculated to appraise” Grimm that the 35 day period began on July 30, 2013, when the letter was mailed. Although the letter contained a date, it appeared as nothing more than the date of the letter, not the date of mailing and not as the date of service. (Grimm v. Calica, 2015 IL App (2nd) 140820 ¶20). The appellate court noted that the Department 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.
The Supreme Court affirmed holding that the Illinois Constitution does not guarantee due process under the Administrative Review Act since it is purely statutory and to be strictly construed; however, the court noted that due process is a flexible concept that depends upon the government action and the effect on a private interest of an individual. Grimm, 2017 IL 120105, supra at ¶21. Going further, the court stated that the agency has no constitutional obligation to inform a party affected by one of its decisions of the statutory right to judicial review or the time period for such review. On the contrary, the expiration of the 35 day period will not bar a plaintiff’s complaint “where the agency fails to fairly and adequately inform a plaintiff of its decision.” Id., citing Bell v. Retirement Board of the Firemen’s Annuity & Benefit Fund, 398 Ill.App.3d 758, 763 (1st Dist. 2010).
Here the majority found a confusing letter that did not adequately divulge how to interpret and apply the 35 day period for filing a complaint for administrative review. The Supreme Court majority applies a comprehensive due process test. Three distinct factors are to be considered. First what is the private interest that is affected by the official action; second, what is the risk of erroneous deprivation through the process used; and, third what is the government’s interest or cost of providing additional safeguards to avoid the same or similar consequences in the future.
The court answered these inquiries by adding that all the government, i.e. DCFS, was required to do was inform Grimm and others similarly situated that the mailing date was the start of the 35 day period. The mailing date could easily be stated in the transmittal letter or a certificate of mailing attached to the opinion.
Justice Thomas, joined by Chief Justice Karmeier, mounted a vigorous and compelling dissent. An overriding aspect of the dissent is a concern for precedent and the future ramifications of the majority opinion. Justice Thomas emphasized that judicial review of administrative decisions is not required by the due process clause and it “necessarily follows that an administrative agency is not required to notify a party of the statutory right to judicial review.” Grimm at ¶38. Continuing, the dissent states that due process does not require the agency how to count the 35 days or to identify the exact day the complaint for administrative review is due. Calculating a due date is not an easy task. Grimm’s attorney was also served with a copy of the opinion by certified mail dated July 30, 2013.
It should be added parenthetically that there is a need to address the fact that the complaint cannot be filed on a weekend or court holiday. The dissent would have the majority provide a due date, a list of court holidays, and, with copies of the statutes! The dissent was clearly concerned with the future aspects of the majority views.
The dissent calls the majority opinion a can of worms that should be obvious since it calls for challenging wording as incomplete or misleading when compared with a protected property interest, i.e. reputation, employment, etc. is at stake and thus mounts a due process challenge to the effect of the wording. ¶58.
Grimm is another legal case in which fairness and alleged due process clash with the rule of law. Interestingly, the notice letter challenged by Grimm is the type that has been used for a long time by DCFS (need cite or part of record) and not challenged in a higher court.
The future should be interesting to observe the offspring of the majority’s view that places a heightened burden of agencies to better instruct litigants as to rights after an opinion or ruling has been made.
Similarly, we should wait to observe the ramifications of Grimm in the general litigation area. For example, must final orders specify the right to reconsideration, appeal, and the related time periods, fees and filing requirements? Do forms provided need sample pleadings attached for auto accidents, simple contracts, money owed, and the like?