The Illinois Administrative Review Act: A Primer
The Illinois Administrative Review Law, codified at 735 ILCS 5/3-101 et sequitur, is the state statute establishing the procedures for obtaining appellate review of a final administrative decision in Illinois state court. Most of the time, the Administrative Review statute applies only if a final decision is made from an administrative hearing before the Illinois Department of Employment Security (IDES). In some instances, if a hearing occurs before an administrative agency that is a separate and distinct part of the state of Illinois, such as the Division of Unemployment Insurance within the Illinois Department of Employment Security, the Administrative Review statute will still apply, but must be looked at on a case-by-case basis.
The Administrative Review statute was first enacted in 1901. The original Section 1 of the statute was stated, In all cases of appeal from any final decision of an administrative officer, board, commission, or other tribunal, including the Administrative Review Commission when sitting as an appellate body , an appeal may be taken directly to the appellate court in the district in which the party appealing resides, or, in case the residence of the party is unknown, to the appellate court in the judicial district in which the hearing or other proceeding was held. For good cause shown, the appellate court in its discretion may permit the appeal to be answered by the administrative officer, board, commission, or other tribunal directly from the record of the hearing or other proceeding in the same manner and subject to the same limitations, so far as applicable, as are prescribed in this Act for appeals to said court from final decisions of administrative officers, boards, commissions and other tribunals. §§ 5/3-101 to 5/3-108. While the plain wording of the original statute may seem simple, the enormous number of administrative appeals has resulted, for better or worse, in the Administrative Review statute being responsible for almost all administrative appellate review in the state of Illinois.
Law and Statutes
The Administrative Review Law is codified at 735 ILCS 5/3-101 through 735 ILCS 5/3-112. Section 3-101 authorizes circuit courts to review decisions of the Illinois Pollution Control Board ("IPCB"), certain State employee administrative agencies, and local governments and home rule entities by administrative review. As "local" governments, municipal corporations are included. The scope of review in an administrative review case is usually limited to the record created before the agency, except in cases where the agency decision is arbitrary and capricious or the agency failed to follow statutory requirements.
Section 3-102 defines which agency decisions are subject to administrative review. As to the IPCB, the statute provides for administrative review of certain final determinations, including certain decisions to grant or deny a requested permit to construct or alter a building. Section 3-102 also provides for administrative review of "[a]ny final decision or order rendered by the Secretary of State" that falls within one of four listed categories. Specifically, the statute at the time of the City’s administrative review case authorized administrative review of final decisions and orders "(i) revoking, suspending, or refusing to issue a license; (ii) denying a license application; (iii) assessing monetary damages or imposing any other sanction; or (iv) imposing a term or condition on a license." In addition to the four listed categories, the statute authorizes the Court to review other Secretary of State decisions related to the regulation of securities, certain financial institutions, and the manufacture and distribution of motor fuels and oils. Importantly, the statute provides that subsection (e) allows for administrative review of any "final decision, final determination or final order other than a decision, determination or order of the Secretary of State – Securities Department listed in [other subsections of the statute]."
The Administrative Review Process
Illinois administrative review law is about as technical and important to litigants as the law could be. Administrative review is an appeal of license denials and revocations and all administrative decisions from a state appeal board like the Illinois Commerce Commission or a government agency like the Department of Professional Regulations. It is important because the appeals are heard in the circuit court without a jury and can’t be appealed further. For some people this is better than the alternative – administrative review is the only way to appeal an administrative decision. Circuit court decisions can be appealed all the way to the Supreme Court.
The first step is to file a complaint at the circuit court. The complaint is meant to accomplish two things. One is to notify the court that you have not received justice at the administrative level. Two is to tell the court what relief you want. The court will set a schedule. In some cases they give you longer to prepare than they would for a trial, but in other cases it’s more like summary judgment. There is no set rule.
A transcript must be obtained and certified. The transcripts from the administrative agencies are not in the court files so you must order them. You can use court reporters who have equipment that allows them to provide this service easily or you can get a CD or DVD copy if it is available. With the DVD, you also usually have to provide it to the court reporter for them to transcribe it. Important: you must file the transcript or a notice that it is being prepared before arguing your case. You also must file a hard copy with the clerk of the court, but electronic filings are accepted by the reviewing court.
Next a written brief is prepared. This is basically your argument. You tell the reviewing court how you think the administrative agency got it wrong and what part of their ruling you disagree with. This is accomplished through Citing case law and stating the errors the administrative agency made. Under administrative review law, the court is considering whether the agency decision was based on evidence presented and whether it was arbitrary and capricious. That means that there has to be enough evidence to support the decision. However, this is a very low standard. The decision will be upheld unless it was against the manifest weight of the evidence. If you want a new decision altogether, you have the burden of proving the agency acted against the manifest weight of the evidence. Otherwise the decision stands.
After the briefs, there’s usually oral argument. Oral argument is generally 10 minutes to argue for the plaintiff and 10 to the defendant. You can also have rebuttal/reply. The court will ask questions.
Actual administrative review appeals are usually argued by an attorney. But pro se representation is possible. If you have something easy it’s possible to handle it yourself. Usually, I recommend not doing that since it’s very complicated and when you screw up, it’s usually irreparable (meaning, your case is lost). But it’s your choice.
Who Can Seek Administrative Review?
In order to seek an administrative review under the Act, a petitioner must fall within the definition of "party." 735 ILCS 5/3-101. There are several factors that an administrative action must have in order for the parties to have a right to an administrative review. The action must be:
- (1) A final determination giving rise to the "manifest injustice" exception;
- (2) An administrative decision by an administrative officer or body after a hearing;
- (3) An administrative decision entered in violation of a statute or constitutional right; and,
- (4) The denial of a motion to vacate a stay or injunction.
735 ILCS 5/3-101.
A party must file its petition within thirty five days of such determination. 735 ILCS 5/3-103. If a party is unsuccessful after the thirty five days are up then they can appeal within thirty-five days from the mailing of notice by the trial court clerk.
The law states that a "party" is defined as "any person affected by or with standing to challenge an administrative decision." 735 ILCS 5/3-101. An affected person may be defined as "any person who, as a result of a final administrative decision other than a judicial review, is aggrieved in his or her personal or property right." 735 ILCS 5/3-104. However, the exclusion is for parties who participated in the administrative decision, as long as the participation was something other than for the purposes of judicial review. 735 ILCS 5/3-105.
Common Issues in Administrative Review Cases
As a general rule courts will not review the merits of an administrative decision, they will only deal with procedural issues. So while petitions for review can address things like whether the "decision was contrary to law," "where the agency made a finding which is against the manifest weight of the evidence," "whether the agency made findings without substantial evidence" or "whether the final administrative order constituted an abuse of discretion," there are a lot of times when that is not the case.
One common issue we see in a lot of our Administrative Review cases is failure to give proper notice of proposed decision. Over the years we’ve heard from clients who were shocked to find final decisions mailed to their homes despite the fact that they had never received mail at that address. In one case we handled a man got a foreclosure judgment mailed to a house he hadn’t lived in for almost a year. Not surprisingly, the bailiff showed up at the house with an eviction order and it was only then that our client learned that he had lost his case.
In another recent case we had a lady contact us after having lost her administrative review appeal for the same reason. Her license had been revoked because of an alleged DUI arrest when in fact she hadn’t even been arrested. Furthermore, the person who had been arrested had provided the wrong address for where she received mail. That meant her license was revoked and she never knew until it was too late .
This kind of action is a violation of due process for lack of notice. If you have a close but unfavorable result in an Administrative Review case file a court petition to reopen the review. Even if you have a "losing case" which you would lose again, the lack of proper notice could mean you get a new chance to win.
Another common issue we deal with involves failure to file a brief. Administrative courts will often give people who are not represented by attorneys an extra step to cure mistakes, in this case a missed brief filing. The reality is that most people don’t understand that a short, informal letter explaining why you didn’t file a brief can get you back in the game. Courts can do whatever they feel is proper and reasonable in these situations and they are much more likely to allow a pro se party more leeway then they would an attorney.
We also see plenty of situations where an attorney misses a deadline or files the wrong thing. Lawn Mowers Etc. individual in Administrative Review and filed a Petition for Review rather than a Complaint for Administrative Review, which is the proper pleading. It cost them quite a bit in attorney’s fees to have it corrected.
These are just a handful of issues we see and fix all the time for clients. But they are also some of the hardest cases to win. So if you realize that you’ve lost an Administrative Review case and think that something went wrong, we’d be happy to speak with you about what your options are.
Courts and Administrative Review
As stated by the Illinois Supreme Court in its opinion in Chicago/Calumet Port District v. Ill. Pollution Control Board, 87 Ill.2d 164 (1981): A reviewing court’s task on appeal is not to choose between two conflicting views, but to determine whether the Board has abandoned its statutory mandate. Id. at 176. The Illinois State Courts have jurisdiction to review final decisions of state agencies, completed administrative proceedings and administrative decisions of local governments (i.e., municipalities and counties) as set forth by statute. The supreme court is the court of review for final decisions made by an administrative agency (other than those designated as final decisions of the Administrative Review proceeded by the Local Governmental Review Act and Section 3-112 of the Illinois Vehicle Code, 625 ILCS 5/2-118.2). The court reviews the agency’s decision under the Administrative Review Act, 735 ILCS 5/3-101 et seq. The supreme court also reviews administrative decisions of the Human Rights Commission and review decisions of the Property Tax Appeal Board. The Circuit Court of Cook County is the reviewing court for decisions of the following agencies, divisions or boards: Cook County Board of Review (under the Cook County Real Property Assessment Classification Ordinance), Cook County Merit Board of Employees, Second Injury Fund, Torture Inquiry and Relief Commission, Cook County Board of Elections and Board of Election Commissioners, Office of Cook County Board of Tax Appeals, and Employees’ Annuity and Benefits Fund of Chicago. Additionally, the circuit courts in the counties in which the decision of a district office of a state agency review of an order of a local zoning board of appeals and hearings opts are filed, or in which the real property that is the subject of the decision is located, may review a real property related administrative action.
Administrative Review Tips
Handling a case before an administrative agency is a separate ball of wax from handling a case in circuit court. Handling an administrative review after an administrative case has been decided takes some knowledge of the nuances of administrative review. If you have lost an administrative case, the agency’s decision is the body of evidence in your case. If you have won an administrative case it is the case that you presented to the judge or agency decision maker which is now the body of evidence. Unfortunately, more times than not, an attorney loses their case before an administrative agency and learns when it is too late that he or she did not handle the administrative case properly to preserve certain issues or even the ability to challenge the outcome. Often a lawyer will think that he or she knows how to present a case in front of a circuit judge or jury. When it comes to an administrative review, the first thing that an attorney must do is to read the governing statute, rules and judicial decisions in the area of the case that is being handled. This can actually be pretty easy because most of the statutes and rules are short and there are often two or three relevant cases that drive this area of the law. If you have a case in front of any state agency it is pretty easy to find out what applies by following the directions on the Illinois Department of Financial and Professional Regulations ("IDFPR") website. The main IDFPR statute that applies to most of the professions it oversees is 225 ILCS 50/1. The relevant rules are found at 68 ill. Admin. Code, Chapter VII.
The next thing you have to do is identify the standard of review that a reviewing court or agency will use. The standard makes a huge difference in an administrative review case, though often times attorneys do not know how to apply it correctly. There are two basic standards: (1) Where an agency is given discretion to act by the General Assembly, the review is for both an abuse of discretion and whether the agency decision is against the manifest weight of the evidence; and (2) Where the General Assembly requires an agency to make a decision within a defined procedure, the review is for whether there "is substantial evidence to support the agency’s decision."
Once you identify the applicable statutes and the standard of review, you need to identify the issues in your case and put together a strong argument for why you should win the case. If you have lost, you also have to put together a strong argument for why the decision was against the manifest weight of the evidence or an abuse of discretion. It is important to remember that the deference owed to the agency decision is strong, so these arguments are not easy but are necessary to be successful. You can’t just present the case you presented before the agency and expect to win.
After you do this you have to do a ton of writing. Writing is one of the most common problems that attorneys have when presenting the case in front of the circuit judge or agency. For example, attorneys often make the mistake of putting together a brief that is way too long. While the length of a document is somewhat meaningless, presenting huge documents in front of courts or agencies is not impressive. In fact, it is often looked down upon. Further, people expect that lawyers will make compelling arguments that have to be made in an organized fashion. They do not expect verbose legalese. At the same time, your arguments need support for every proposition that you make and every statement that you make, regardless of how obvious it may seem. Finally, it is very important to remember that every administrative review case is different and often requires custom help for the facts of your case.
Recent Cases and Developments
Courts have recently clarified the scope of review in administrative review cases. In Rockford Memorial Hospital v. Department of Healthcare & Family Services, the circuit court affirmed the Illinois Department of Healthcare & Family Services’ decision denying payment for medical services rendered to a child eligible for benefits under the State Children’s Health Insurance Program ("S-CHIP"). 2018 IL App (2d) 170126. The court affirmed the Department’s decision based on res judicata.
The doctrine of res judicata prevents relitigation of issues previously tried in a prior proceeding where (1) the former and current cases involve substantially the same parties, (2) the former and current cases involved the same issue , and (3) a judgment was entered in the former case. Id. at ¶ 27.
The Department argued that res judicata barred the hospital’s complaint for administrative review. The Department argued that the issue of whether the services provided were medically necessary was considered by the Department during the underlying administrative proceedings. Id. at ¶ 31. The circuit court agreed with the Department and affirmed its decision.
The Illinois Appellate Court for the Second District affirmed the circuit court’s decision and held that res judicata barred the hospital from contesting the issue of medical necessity. The Appellate Court made clear that courts cannot consider underlying evidence if the appellant does not challenge the circuit court’s decision as evidence on appeal. As such, unless the issue of medical necessity is properly preserved for appeal, the Court cannot look beyond the legal arguments made on appeal. The Court emphasized that the hospital should have presented the factual circumstances giving rise to the underlying issues – such as the medical procedures sought to be covered by the S-CHIP program – before the Department. Because it did not do so, res judicata barred the hospital on appeal. Therefore, in administrative review cases, it is critical that appellants preserve issues for appeal at the circuit court level.
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