delivered the opinion of the court:
Sterling Ryder, former Director of the Illinois Department of Children and Family Services (DCFS), Jess McDonald, Director of the DCFS, and Ann Breen-Greco, DCFS administrative law judge (ALJ) (hereinafter defendants), bring this appeal. The defendants seek review of a decision of the trial court of Lake County. The trial court reversed the decision of the ALJ. The ALJ refused to expunge from the State register a report of an "indicated” finding of sexual molestation by the plaintiff, Michael Cavarretta, of a female junior high school student. The trial court found that DCFS violated the plaintiff’s due process rights by failing to hold a timely administrative hearing and render a timely decision. The defendants appeal the trial court’s decision. We affirm.
We begin our discussion with an overview of the Abused and Neglected Child Reporting Act (Act) (325 ILCS 5/1 et seq. (West 1994)). The Act provides that DCFS shall receive and investigate reports of child abuse or neglect made under the Act and maintain a State register of all such cases. (325 ILCS 5/7.3, 7.7 (West 1994).) After DCFS receives a report of suspected child abuse or neglect, DCFS forwards the report to the State register. (325 ILCS 5/7.10 (West 1994).) Thereafter, DCFS investigates the report (325 ILCS 5/7.4(b)(3) (West 1994)) to determine whether the report is "indicated” or "unfounded” within 60 days (325 ILCS 5/7.12 (West 1994)) and reports the determination to the State register (325 ILCS 5/7.12 (West 1994)). If DCFS determines "that credible evidence of the alleged abuse or neglect exists,” the report is deemed "indicated.” (325 ILCS 5/3 (West 1994).) If DCFS determines "that no credible evidence of abuse or neglect exists,” the report is deemed "unfounded.” (325 ILCS 5/3 (West 1994).) If DCFS is unable to "initiate or complete an investigation on the basis of information provided to the Department,” or is unable to do so within 60 days, the report is deemed "undetermined.” (325 ILCS 5/3, 7.12 (West 1994).) The Illinois Administrative Code (Code) provides that DCFS must make its determination within 60 days of the complaint. 89 111. Adm. Code § 300.90(d) (1994).
After DCFS sends notice of the determination to the subject of the report, the subject may request DCFS to expunge or amend the report within 60 days. (325 ILCS 5/7.16 (West 1994).) If DCFS denies the request or fails to act within 30 days:
"[T]he subject shall have the right to a hearing *** to determine whether the record of the report should be amended, expunged, or removed on the grounds that it is inaccurate or it is being maintained in a manner inconsistent with [the] Act.” (325 ILCS 5/7.16 (West 1994).)
The hearing "shall be held within a reasonable time after the subject’s request.” (Emphasis added.) (325 ILCS 5/7.16 (West 1994).) Moreover, the Code provides: "The Administrator of the Administrative Hearing Unit shall *** schedule the hearing at a date within 30 calendar days of the date [of] the appellant’s written notice stating that the” issue was not resolved "to the appellant’s satisfaction.” (Emphasis added.) 89 111. Adm. Code § 336.110(d)(1) (1994).
At the hearing, DCFS has the burden of proving the accuracy and consistency of the record. Further, the ALJ’s "decision shall be made, in writing, at the close of the hearing, or within 30 days thereof.” (Emphasis added.) (325 ILCS 5/7.16 (West 1994).) The ALJ must base its recommendation on whether there is "credible evidence of abuse or neglect.” (89 111. Adm. Code § 336.130(b)(14) (1994).) The DCFS Director’s decision to adopt, modify, or disagree with the ALJ’s recommendation must be "based upon the credible evidence standard.” (89 111. Adm. Code § 336.150(a) (1994).) "Decisions of the [DCFS] *** are administrative decisions subject to judicial review under the Administrative Review Law [(735 ILCS 5/3 — 101 et seq. (West 1994))].” 325 ILCS 5/7.16 (West 1994).
In the instant case, on February 26, 1992, DCFS received a report from Richard Carlstadt, the principal of Lundahl Junior High School, alleging that the plaintiff, a physical education teacher at the school, fondled and tickled C.M., a 14-year-old female student, on February 19, 1992. DCFS began its investigation on February 27, 1992. The record does not indicate when DCFS completed its investigation. However, by April 24, 1992, 58 days after the investigation began, the State register was informed that DCFS determined that the report was "indicated.” On May 14, 1992, DCFS notified the plaintiff that the "indicated” report would be placed in the State register, 78 days after DCFS began its investigation. The plaintiff requested that DCFS expunge the report. The record does not reveal when DCFS received the request. However, the request form was dated June 8, 1992. On July 27, 1992, a DCFS child protection manager determined that credible evidence existed in the record, and on August 19, 1992, DCFS notified the plaintiff that the review panel denied his request for expungement.
On August 28, 1992, the plaintiff requested an administrative hearing on the issue. On September 17, 1992, DCFS sent the plaintiff a letter regarding the plaintiff’s request for an administrative hearing. The DCFS letter stated in relevant part:
"Due to the numerous requests for administrative hearings that this office receives, we will not be able to schedule your requested hearing for several months. However, approximately one month before the hearing is scheduled, someone from this office will either contact you or send you a notice concerning the scheduling of ■the hearing.”
On May 24, 1993, DCFS notified the plaintiff that the hearing was scheduled for June 23, 1993, 299 days after the plaintiff made his request. The parties agreed to continue the hearing until August 10, 1993. The record does not indicate which party made the request for the continuance. An administrative hearing was held on September 2, September 8, and October 14, 1993.
On April 1, 1994, 581 days after the plaintiff appealed the DCFS decision and 169 days after the last day of testimony, the ALJ issued her recommendation and opinion. The ALJ found that there was "credible evidence” that the plaintiff sexually molested C.M. and, thus, denied the plaintiff’s request for expungement of the record from the State register. The DCFS Director adopted the ALJ’s recommendation and opinion on April 18, 1994.
The plaintiff timely appealed to the trial court and argued that: (1) DCFS deprived the plaintiff of due process by failing to meet time line requirements, using the credible evidence standard, failing to call C.M. as a witness, using an ALJ from DCFS, and allowing improper pressures to be applied to the scheduling, processing, evidentiary rulings, and deliberations; (2) DCFS failed and refused to provide the plaintiff with an unexpurgated copy of the DCFS file; (3) section 3 of the Act is unconstitutional as written and as applied; (4) the ALJ erroneously admitted DCFS records into evidence; (5) DCFS failed to prove its case; (6) the plaintiff should have been allowed to comment on the ALJ’s opinion before the DCFS Director adopted the opinion; (7) DCFS’ decision was improperly based on hearsay; and (8) double jeopardy barred the case. The trial court reversed the ALJ decision and ordered DCFS to expunge the plaintiff’s record. The trial court relied on Stull v. Department of Children & Family Services and found that DCFS violated the plaintiff’s due process rights by delaying the appeal process. (Stull v. Department of Children & Family Services (1992), 239 111. App. 3d 325.) The trial court did not determine whether the ALJ’s decision was against the manifest weight of the evidence.
On appeal, the defendants argue that the plaintiff’s due process rights were not violated. The defendants claim that neither the lack of strict compliance with the statutory and regulatory time frames nor the application of the "credible evidence” standard violated the plaintiff’s due process rights. In addition, DCFS claims that the ALJ’s decision to deny plaintiff’s request to expunge the "indicated” report was neither against the manifest weight of the evidence nor contrary to law.
Initially, we note our standard of review. The Act provides that judicial review of DCFS final decisions will be in accordance with the Administrative Review Law (735 ILCS 5/3 — 101 et seq. (West 1994)). (325 ILCS 5/11.6 (West 1994).) The Administrative Review Law states that our review "shall extend to all questions of law and fact presented by the entire record before the court.” (735 ILCS 5/3 — 110 (West 1994).) Further, "[t]he findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.” (735 ILCS 5/3 — 110 (West 1994).) However, the findings of the administrative agency on questions of law are not binding on this court. DiFoggio v. Retirement Board of the County Employees Annuity & Benefit Fund (1993),
Administrative proceedings are governed by the fundamental principles and requirements of due process of law. (Abrahamson v. Illinois Department of Professional Regulation (1992),
It is well established that damage to a person’s reputation alone is not sufficient to implicate a Federal liberty interest. (Paul v. Davis (1976),
We agree with the Illinois Appellate Court, Fifth District, that being placed on the State register of suspected child abusers implicates a Federal liberty interest. (Stull,
"The Department may revoke or refuse to renew the license of any child care facility or refuse to issue full license to the holder of a permit should the licensee or holder of a permit:
* * *
*** be the subject of an indicated report under Section 3 of [the Act] or fail to discharge or sever affiliation with the child care facility of an employee or volunteer at the facility with direct contact with children who is the subject of an indicated report under Section 3 of that Act.” 225 ILCS 10/8(9) (West 1994).
In addition, a teacher placed on the State register may have a difficult time retaining or acquiring a teaching position. A teacher placed on the State register of suspected child abusers may lose his teaching certificate. (105 ILCS 5/21 — 23(b) (West 1994).) Further, a school may be liable for injuries to students if the school district is guilty of willful and wanton misconduct. (Kobylanski v. Chicago Board of Education (1976),
Moreover, the list of persons who have access to the records in the State register is considerable. The list includes: State police, physicians, grand juries, legal supervisors of children, law enforcement agencies, school superintendents, welfare agencies, and "[a]ny person authorized by the Director *** for *** research purposes.” (325 ILCS 5/11.1(10) (West 1994).) After considering the burden the law places on educational employers to keep schools and child care facilities safe for children, we determine that Mr. Cavarretta, the subject of an "indicated” report in accordance with the Act, was deprived of a liberty interest protected by the due process clause of the United States Constitution. Stull,
The defendants argue that, because placement of the plaintiffs name has not resulted in an adverse employment decision, no liberty interest is implicated. The defendants cite to Lewis v. Department of Children & Family Services to support their argument. (Lewis v. Department of Children & Family Services (N.D. Ill. June 10, 1994), No. 93 — C—2908.) Initially, we note that we are not bound by a Federal court decision other than a decision of the United States Supreme Court. (People v. Fern (1993),
We disagree with the analysis in Lewis. In dismissing the writ of mandamus, the Lewis court erroneously relied on Siegert v. Gilley (1991),
Lewis and the instant case are distinguishable from Siegert because the plaintiff in Siegert sought damages for a constitutional tort, not a writ of mandamus, whereas the plaintiffs in Lewis and the instant case sought expungement of a defamatory public record which was published by the State, allegedly without due process of law. Further, we find a great demarcation between the negative reference letter in Siegert and the "indicated” reports in Lewis and the case at bar. In Siegert, the plaintiff was defamed by a mere letter to one potential employer from one individual, whereas in Lewis and the case at bar the State labeled the plaintiffs "suspected child molesters” and placed their names on State-maintained lists. The Act causes more than an injury to reputation. Being placed on the State register of suspected child abusers is not merely a negative reference from a previous employer. Instead, as discussed above, the report could, effectively, preclude the plaintiff from working in any capacity in his chosen profession and in the child care profession as well.
Further, we find the Lewis court’s distinction of Valmonte (
In addition, we believe that a person placed on the State register of suspected child abusers in accordance with the Act has a due process right protected by the Illinois Constitution. (Ill. Const. 1970, art. I, § 2.) The Illinois Constitution has a long history of providing protection for one’s reputation (Ill. Const. 1818, art. VIII, § 1; Ill. Const. 1870, art. II, § 19; Ill. Const. 1970, art. I, § 12) and character (Ill. Const. 1818, art. VIII, § 12; 111. Const. 1848, art. XIII, § 12). (Traman v. Wood (1975),
We must now determine whether the administrative procedures provided the plaintiff with due process. DCFS claims that the time delays did not constitute a violation of the plaintiff’s due process rights because: DCFS was only nine days late in completing its investigation; the plaintiff waived his right to a hearing within a reasonable time; DCFS was not late in issuing its final decision; the regulatory and statutory time frames are merely directive and not mandatory; and the public interest far outweighs the plaintiff’s need for timely action. The plaintiff asserts that his due process rights were violated by the numerous time delays and the burden of proof required by the Act and the Code. We agree with the plaintiff.
We first address the time delay issue. The United States Supreme Court has stated that due process requires, inter alia, a hearing at a meaningful time. (Loudermill,
We adopt the reasoning of the Appellate Court, Fifth District, in Stull (
We believe that the rule set forth in Stull is equally applicable in the case before us. The defendants acknowledge that the plaintiff requested a hearing on August 28, 1992, but DCFS did not schedule a hearing until June 23, 1993, 299 days after the plaintiffs request. Further, the DCFS Director issued his decision on April 18, 1994, 39 days after the hearing was complete and 598 days after the plaintiff requested a hearing. We determine that a 299-day delay in providing a hearing, a 9-day delay in issuing a final decision, and a 598-day delay in completing the, appeals process is a gross deviation of the established time limits and thus a violation of the plaintiff’s due process rights. Accordingly, we need not determine whether the other alleged time deviations warrant reversal.
The defendants argue that the instant case is distinguishable from Stull (239 111. App. 3d 325) because the plaintiff in Stull filed a motion to dismiss at the administrative hearing and the court delay in Stull was longer than the delay in the instant case. We find these arguments unpersuasive. We recognize that the plaintiff in the instant case did not file a motion to dismiss during the administrative hearing. However, we do not believe the plaintiff waived his right to a timely hearing because the trial court specifically found that the plaintiff raised the argument at the administrative hearing. In addition, we find the difference in delay immaterial. In Stull, the plaintiffs case was not heard until 347 days after he requested a hearing. In the instant case, the plaintiff suffered a 299-day delay. We agree with the trial court that the time distinction is "minimal at best.” While we decline to define "reasonable time” as a precise number of days, we determine that a 299-day delay from the agency’s own rules is unreasonable and violates the requirements of due process.
In addition, the defendants argue that the plaintiffs only remedy for the unlawful delay of an administrative hearing is to proceed in mandamus. The defendants cite to S. W.,
Next, the defendants argue that the plaintiff waived the time delay argument because he participated in the hearing and did not file a motion to dismiss. However, the cases cited by the defendants are distinguishable on their facts. In City of Rockford v. County of Winnebago (1989),
Finally, we address the issue of whether the "credible evidence” standard of review (89 Ill. Adm. Code §§ 336.130(b)(14), 336.150(a) (1994)) deprives a subject of due process. To evaluate the standard at issue, we must balance the following factors: (1) the nature of the private interest that may be affected by a particular decision; (2) the fairness and reliability of the existing procedure and the effect of additional procedural safeguards; and (3) the governmental interest. Mathews v. Eldridge (1976),
The defendants claim that the degree of potential deprivation is minimal because inclusion on the State register results in merely a speculative deprivation. We disagree and determine that inclusion on the State register implicates the plaintiffs interest in pursuing his chosen occupation. Stull,
Under the second Mathews factor, we determine that the "credible evidence” standard renders the existing procedure unfair and unreliable. The Act provides that credible evidence "means that all the available facts, when viewed in light of surrounding circumstances, would cause a reasonable person to believe that a child was abused or neglected.” (89 Ill. Adm. Code § 336.20 (1994).) Initially, we note that the "credible evidence” standard is no more stringent than the probable cause standard. Probable cause exists when all the facts and circumstances available at the time would cause a reasonably prudent person to believe that the suspect is committing or has committed a crime. (People v. Montgomery (1986),
Under the third Mathews factor, we recognize that the Act reflects the significant governmental interest in protecting children from abuse. However, we also recognize that the Act facilitates the deprivation of a significant individual interest by a standard of proof which presents a high risk of error. After weighing all of the relevant factors, we determine that the "credible evidence” standard deprives a subject of due process. (See Valmonte,
Because we find that the plaintiff’s due process rights were violated, we need not address whether the administrative law judge’s decision that there was credible evidence that the plaintiff was a suspected child abuser was against the manifest weight of the evidence based upon the preponderance of the evidence contained in the record.
Accordingly, the judgment of the circuit court of Lake County is affirmed.
Affirmed.
INGLIS and THOMAS, JJ„ concur.