Altenheim German Home v. Turnock

902 F.2d 582
CourtCourt of Appeals for the Seventh Circuit
DecidedMay 15, 1990
DocketNos. 89-1840, 89-2505
StatusPublished
Cited by10 cases

This text of 902 F.2d 582 (Altenheim German Home v. Turnock) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Altenheim German Home v. Turnock, 902 F.2d 582 (7th Cir. 1990).

Opinion

POSNER, Circuit Judge.

The district judge permanently enjoined the Illinois Department of Public Health from depriving the Altenheim German Home, a nursing home, of its unconditional license, on the ground that the Department had denied “The Altenheim” (as it is called) the hearing to which it was entitled by the due process clause of the Fourteenth Amendment. We could reverse with a citation to Somerset House, Inc. v. Turnock, 900 F.2d 1012 (7th Cir.1990), a nearly identical case in which another panel of this court reversed the grant of a preliminary injunction, but since the facts and some of the arguments made by the parties are different we shall soldier on — briefly.

On November 28, 1988, after several incidents in which demented residents of the home had wandered off — and this after the Department, pursuant to the Nursing Home Care Reform Act of 1979, Ill.Rev. Stat. ch. 111%, ¶¶ 4151-101 et seq., had ordered the Altenheim to equip all the exterior doors of the facility with alarms — the Department sent one of its employees, a registered nurse, to conduct a survey of the alarm situation. The Altenheim had installed an alarm system, yet the nurse found an outside door that was neither alarmed nor monitored, and she was able to go in and out of it three times in a fifteen-minute period without being noticed by anyone on the Altenheim’s staff. On the basis of this incident the Department issued a conditional license to the Altenheim (that is, yanked its unconditional license) and also a notice of repeat violation. Ill. Rev.Stat. ch. 111%, OT 4153-304(a)(5), -305(5). The substitution of the conditional for an unconditional license means that if the Altenheim violates any of the remedial measures prescribed by the Department the license will be revoked and the Alten-heim will be out of the nursing home business. If 4153-316. It is as if the Altenheim were a convicted criminal on probation, or a criminal defendant released on his own recognizance pending trial. These analogies are reinforced by the fact that the conditional license lasts for at most a year and if at the end of that time the nursing home has corrected the infractions, its unconditional license is restored. Id. The notice of repeat violation is circulated to doctors and reduces the likelihood that they will refer patients to the violator.

The Department concedes that these measures, which go beyond the mere disparagement found in cases like Goulding v. Feinglass, 811 F.2d 1099, 1103 (7th Cir.1987), work a sufficient impairment of the Altenheim’s property right in its unconditional license (it is a “property right” in the Fourteenth Amendment sense of this much-abused term because the license cannot be revoked without cause, Reed v. Village of Shorewood, 704 F.2d 943, 948 (7th Cir.1983)) to entitle the Altenheim to due process. Id. at 949; Cameo Convalescent Center, Inc. v. Senn, 738 F.2d 836, 843 (7th Cir.1984); Baja Contractors, Inc. v. City of Chicago, 830 F.2d 667, 676-67 (7th Cir.1987); Fleury v. Clayton, 847 F.2d 1229, 1232-33 (7th Cir.1988). We need not decide whether the concession is correct; we need only decide whether there was a denial of due process.

The Altenheim complains that it was denied a right to a full evidentiary hearing before the measures constituting the deprivation of its property were put into effect. It is correct that there was no evidentiary hearing in the usual sense. There was instead the following. When the Depart-[584]*584merit’s inspector discovers a violation of the safety or health regulations with which a licensed nursing home is required to comply, the inspector on her way out of the facility informs the manager in writing of what she has found and the facility has ten days within which to file written comments with the Department, which then issues a written order. Ill.Rev.Stat. ch. IIIV2, 114153-212(c). Afterward the nursing home is entitled to a full evidentiary hearing, 1Í1Í 4153-301, -303, and -703 to -712, and the Altenheim is pursuing that route. But before, all it is entitled to is a paper hearing. Somerset holds that such a hearing is good enough, but without explicit discussion of the possibility that there might in a particular case be sharply contested issues of fact turning on questions of credibility that could not rationally be answered without live testimony. Perhaps this is such a case, but the Altenheim has made no effort to show that it is, instead arguing that regardless of the circumstances a nursing home is entitled to a full evidentiary hearing, with live witnesses and cross-examination and all the rest of the procedural hoopla treasured by Anglo-American lawyers, before its license is made conditional or a notice of repeat violation is issued.

No more than the panel in Somerset do we agree with this extravagant suggestion. The nature and extent of the hearing that due process requires depends on the nature of the issues. Even a person facing the loss of all his property in a civil suit is not entitled to a full evidentiary hearing unless there are genuine issues of material fact. If there are no such issues, all he gets is a paper hearing, just like the Altenheim. Fed. R. Civ. P. 56; In re Grand Jury Proceedings, 894 F.2d 881, 882-83 (7th Cir.1990). We do not know whether there are such issues here because the Altenheim chose not to make the written comments that it filed a part of the record, chose not to introduce into evidence a diagram of its facility, chose not to explain the nature of its alarm and monitoring system, and in short chose not to make the district judge or us privy to the actual particulars of its dispute. It says (but words are cheap) that the door through which the nurse inspector walked unobserved is in the administration wing of the facility, where there are no patients. The Department replies — without contradiction — that the administration wing is connected to other buildings in the complex, in which there are patients, and the patients can enter the administration wing without passing through an alarmed or monitored door and can then scoot out through the door that the inspector entered and left without being observed. The Al-tenheim does not deny the possibility but says that it is unlikely. A diagram of the facility might have shown whether there is a real dispute over the risk of flight, but as we have said the Altenheim has chosen to challenge the licensing scheme on purer grounds which happen to be untenable. For, to repeat, there is no right to a factual hearing if there are no disputed facts.

There is much argument in the briefs about when a state must offer a pre-termi-nation (here, more accurately, pre-sanction) evidentiary hearing.

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902 F.2d 582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/altenheim-german-home-v-turnock-ca7-1990.