Progressive Housing, Inc. v. Illinois Guardianship & Advocacy Comm'n

2024 IL App (1st) 240519-U

• Court: Appellate Court of Illinois
• Decided: December 24, 2024
• Docket: 1-24-0519
• Status: Unpublished

Opinion

2024 IL App (1st) 240519-U

SECOND DIVISION December 24, 2024

No. 1-24-0519

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

PROGRESSIVE HOUSING, INC., ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) ) No. 22CH12223 ILLINOIS GUARDIANSHIP AND ADVOCACY ) COMMISSION, ) Honorable ) Clare J. Quish, Defendant-Appellee. ) Judge Presiding. ______________________________________________________________________________

JUSTICE McBRIDE delivered the judgment of the court. Presiding Justice Van Tine and Justice Ellis concurred in the judgment.

ORDER

¶1 Held: The trial court lacked subject matter jurisdiction over plaintiff’s petition for writ of certiorari because the Authority’s decision to publish its report did not constitute a final administrative decision.

¶2 This case arose following plaintiff Progressive Housing, Inc.’s petition for a writ of

certiorari seeking the trial court’s review of the decision to publish a report issued by a regional

authority of defendant the Illinois Guardianship and Advocacy Commission (the Commission).

The Egyptian Regional Human Rights Authority (the Authority), a regional authority under the

Human Rights Authority of the Commission, received an anonymous complaint against plaintiff No. 1-24-0519

and investigated the allegations. Following its investigation, the Authority sent its report to

plaintiff and offered plaintiff the opportunity to respond. The Authority subsequently closed the

case with the report and response to be published as part of the public record. In response to

plaintiff’s petition, the Commission filed a motion to dismiss, which the trial court granted after

finding it lacked subject matter jurisdiction.

¶3 On appeal, plaintiff argues that: (1) the trial court erroneously dismissed its complaint for

lack of jurisdiction; (2) the Authority’s decision to publish its report was a discretionary act and

properly reviewed through a writ of certiorari; and (3) the trial court erred in finding that the

publication of the report did not affect plaintiff’s legal rights, duties, or privileges.

¶4 Plaintiff filed a complaint for administrative review in December 2022, regarding the

publication of the report issued by the Authority. The Commission subsequently moved to

dismiss the complaint. In response, plaintiff refiled its pleading as a petition for writ of certiorari

and alleged the following facts.

¶5 Plaintiff is an Illinois not-for-profit corporation providing support services to individuals

with developmental disabilities and their families. It maintains facilities around the state of

Illinois. The Commission is an administrative agency in Illinois, established under the

Guardianship and Advocacy Act (Guardianship Act) (20 ILCS 3955/1 et seq. (West 2020)), to

protect the rights and promote the welfare of persons with disabilities. Id. § 3, § 6. The

Authority, a division of the Commission, received a complaint filed by an unknown complainant

and conducted an investigation in 2021. See id. § 14, § 15; see 59 Ill. Admin. Code § 310.10(b).

The complaint alleged that plaintiff had “failed to provide adequate treatment planning by not

allowing residents to return to community day services” once plaintiff’s facilities “reopened

following Covid-19 mitigation.” Following its investigation, the Authority prepared a report of

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its findings. 20 ILCS 3955/15 (West 2020); 59 Ill. Admin. Code § 310.10(b). In a letter, dated

July 25, 2022, the Authority notified plaintiff that the investigation was complete and enclosed a

copy of the report of findings. 20 ILCS 3955/23 (West 2020); see 59 Ill. Admin. Code § 310.70.

The letter invited plaintiff to respond with its comments and/or objections to the report. The

letter also noted that the Authority “may vote to make any of its findings a part of the public

record.” 20 ILCS 3955/26 (West 2020); 59 Ill. Admin Code § 310.70(c)(4), (d)(2). Plaintiff was

given the option to include its comments and/or objections in “any publicly released report.” 59

Ill. Admin. Code § 310.70(d)(3).

¶6 On August 30, 2022, plaintiff sent its response to the Authority and asserted that the

report was not correct in its findings and “contain[ed] conclusions in conflict with evidence in

the [r]eport.” Plaintiff requested the report be withdrawn or corrected because the findings were

“against the manifest weight of the evidence based on the record” before the Commission and

provided a list of factual inaccuracies and flawed findings from the report. Notably absent from

the record on appeal is the Authority’s report.

¶7 In a letter dated December 1, 2022, the Authority informed plaintiff that it had closed the

case at its November 2022 meeting, and the decision without modification would become part of

the public record and posted on the Authority’s website. The Commission agreed to withhold

publication until the litigation is concluded.

¶8 In its petition, plaintiff alleged that the publication of the report will make “the false and

highly prejudicial findings of the Authority” public and would negatively portray plaintiff “as a

facility that did not adequately provide for its residents during the era of Covid-19 protocols.”

According to plaintiff, public review of these findings would prejudice plaintiff and its

reputation. Plaintiff maintained that the findings had “no basis in fact” and were “directly

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contrary” to plaintiff’s actions in accordance with the Covid-19 guidelines. According to

plaintiff, the Commission’s decision to publish the report is an administrative action reviewable

by the trial court through a common law writ of certiorari.

¶9 In its prayer for relief, plaintiff requested that the trial court order the Commission to

prepare and file the record upon which the report was based, enter an order prohibiting the

Commission or a third party from filing the report or the response in the public court file of this

action, and direct the Commission, through the Authority, to withdraw the report or correct any

substantial inaccuracies found by the court.

¶ 10 The Commission moved to dismiss plaintiff’s petition under section 619.1 of the Code of

Civil Procedure (the Code) (735 ILCS 5/2-619.1 (West 2020)) and asserted multiple grounds for

dismissal. The Commission first contended that plaintiff failed to state a cause of action under

section 2-615 of the Code (735 ILCS 5/2-615 (West 2020)) because the report was not a binding

administrative decision and was not reviewable under the Administrative Review Law (735

ILCS 5/3-101 et seq. (West 2020)). The Commission also argued that plaintiff’s petition should

be dismissed pursuant to section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2020))

because it had no valid basis for asking the trial court to prevent the Commission from taking its

statutorily authorized action in publishing the report.

¶ 11 Following briefing and arguments, the trial court entered a written order and granted the

Commission’s motion to dismiss. In its order, the court found that it lacked jurisdiction to

consider plaintiff’s petition because the Authority’s decision to publish the report, alongside any

objections, was not a final administrative decision subject to the court’s review. Specifically, the

court observed:

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“The Defendant/Authority’s decision to publish a report, alongside any

objections, is not, itself, a final administrative decision. Plaintiff’s complaint and

the correspondence between Plaintiff and Defendant/Authority attached thereto

show that there was no adversarial proceeding involving Plaintiff and the

Defendant/Authority and no hearing on any controverted facts. There was no

ultimate disposition rendered by an impartial fact finder.

Moreover, Defendant’s decision to publish does not indicate in any way

that it is a final and appealable agency decision or that an appeal may be taken

within a prescribed period of time. The absence of any language in Defendant’s

letter concerning appeal rights is a further indication that the letter was not

intended to be a final and appealable agency determination.”

¶ 12 This appeal followed.

¶ 13 Initially, as pointed out above, plaintiff has not included the Authority’s report in the

record on appeal. Plaintiff, as the appellant, bears the burden of providing a sufficiently complete

record to support its claim or claims of error, and in the absence of such a record on appeal, it

will be presumed that the order entered by the trial court was in conformity with law and had a

sufficient factual basis. Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984). Moreover, any doubt

arising from the incompleteness of the record will be resolved against the appellants. Foutch, 99

Ill. 2d at 392. Plaintiff’s failure to file the Authority’s report on appeal severely hinders our

ability to fully review plaintiff’s claims and engage in a complete analysis. We could easily

dismiss plaintiff’s appeal on this basis, but we will review the question of whether the trial court

had subject matter jurisdiction to consider plaintiff’s petition for a writ of certiorari. See Walters

v. Rodriguez, 2011 IL App (1st) 103488, ¶¶ 6, 8 (court may not only strike portions of the brief

5 No. 1-24-0519

or consider arguments waived, but it may strike a brief in its entirety and dismiss the matter

when the appellant fails to file a sufficient record).

¶ 14 At issue, then, is whether the Authority’s decision to publish the report was a final

administrative decision subject to the trial court’s review. Plaintiff argues that the Authority’s

decision to close the case and publish the report was reviewable by the trial court. The

Commission, on the other hand, maintains that the Authority’s report and its publication was not

a final administrative decision because no hearing or adversarial process took place and the

report did not affect plaintiff’s rights, duties, or privileges.

¶ 15 Section 2-619.1 is a combined motion that incorporates sections 2-615 and 2-619 of the

Code. 735 ILCS 5/2-619.1, 2-615, 2-619 (West 2020). A motion to dismiss pursuant to section 2-

615 of the Code attacks the legal sufficiency of the complaint by alleging defects on its face.

Gatreaux v. DKW Enterprises, LLC, 2011 IL App (1st) 103482, ¶ 10. In contrast, a motion to

dismiss pursuant to section 2-619 admits the legal sufficiency of the complaint but raises an

affirmative defense or another basis to defeat the claims alleged. Id. Section 2-619(a)(9) permits

involuntary dismissal where “the claim asserted against defendant is barred by other affirmative

matter avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9) (West 2020).

Under either section, the reviewing court accepts all well-pleaded facts and all reasonable

inferences as true. Kopf v. Kelly, 2024 IL 127464, ¶ 63. We construe the pleadings and

supporting documents in the light most favorable to the nonmoving party. Id. We review the trial

court’s dismissal order de novo. Id.

¶ 16 We first consider whether the Authority’s decision to publish the report on its website

signified a final administrative decision subject to review in the circuit court. Whether an agency

action is reviewable is an issue of statutory construction. Outcom, Inc. v. Illinois Department of

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Transportation, 233 Ill. 2d 324, 332 (2009). We must look to the agency’s enabling statute to

determine if the legislature intended the agency’s decisions to be reviewable. Id. at 332-33.

While the Administrative Review Law can provide guidance, the Guardianship Act, at issue

here, has not adopted the Administrative Review Law. See 20 ILCS 3955/5 (West 2020).

¶ 17 “ ‘A common law writ of certiorari is a general method of obtaining circuit court review

of administrative actions when the act conferring power on the agency does not expressly adopt

the Administrative Review Law and provides for no other form of review.’ ” My Baps

Construction Corp. v. City of Chicago, 2017 IL App (1st) 161020, ¶ 86 (quoting Hanrahan v.

Williams, 174 Ill. 2d 268, 272 (1996)). A writ of certiorari is reviewed under the same standard

as set forth in the Administrative Review Law. Id.

¶ 18 The Administrative Review Law defines an “administrative decision” as “any decision,

order or determination of any administrative agency rendered in a particular case, which affects

the legal rights, duties or privileges of parties and which terminates the proceedings before the

administrative agency.” 735 ILCS 5/3-101 (West 2020). The common law writ of certiorari

provides a basis for a party with no other avenue of appeal or direct review to obtain a limited

review an agency or tribunal exercising quasi-judicial functions. Reichert v. Court of Claims of

State of Illinois, 203 Ill. 2d 257, 260 (2003). “An administrative agency may exercise a judicial

or quasi-judicial function if it decides a dispute of adjudicative fact or if the law otherwise

requires it to act in a judicial manner.” Nyhammer v. Basta, 2022 IL 128354, ¶ 1.

¶ 19 However, unless the agency issues a final administrative decision, the circuit court lacks

jurisdiction to review the complaint. O’Rourke v. Access Health, Inc., 282 Ill. App. 3d 394, 401

(1996); see Masterton v. Village of Glenview Police Pension Board, 2022 IL App (1st) 220307,

¶¶ 40-41 (interim decision to pay minimum benefits was not a final administrative decision

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because no adversarial process had occurred, no disposition was entered by an impartial

factfinder, and the beneficiary was “not placed on notice that the interim decision was final and

subject to administrative review”); Shempf v. Chaviano, 2019 IL App (1st) 173146, ¶ 46 (an

agency’s denial to hold a hearing was not a final administrative decision because the plaintiff’s

action was premature and not subject to administrative review); Sherman West Court v. Arnold,

407 Ill. App. 3d 748, 750-51 (a settlement order to reinvestigate a complaint was not a final

administrative order because no hearing had been conducted and it did not terminate the

proceedings to provide for judicial review); Illinois Wood Energy Partners, L.P. v. County of

Cook, 281 Ill. App. 3d 841, 851 (1995) (an internal communication expressing an advisory

opinion regarding the plaintiff’s request for a zoning certificate was not a final administrative

decision because it did not notify the plaintiff of a decision or provide notice to any potentially

aggrieved parties). “Such determinations contemplate an adversarial proceeding involving the

parties, a hearing on the controverted facts, and an ultimate disposition rendered by an impartial

fact finder.” O’Rourke, 282 Ill. App. 3d at 401. Absent a final administrative decision, the circuit

court lacks jurisdiction to consider the matter. Id.

¶ 20 Here, plaintiff conceded in the trial court that no hearing was conducted before the

Authority and that the report was “not itself a decision.” Further, plaintiff’s petition for a writ

only sought review of the Authority’s decision to publish the report and did not challenge the

findings in the report. Plaintiff contends that the Authority’s use of its discretion to publish the

report was reviewable. We disagree.

¶ 21 The Authority was authorized to publish its report under the Guardianship Act. Section

26 of the Guardianship Act provides:

“Subject to the provisions of Section 19, a regional authority may make

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public its findings and recommendations. It shall include in any such public

statement any reply made by the State agency, service provider, or other person

investigated. The provider or person shall have opportunity to review and object

to any proposed public findings and recommendations. If the provider requests,

the objections shall be included with public findings and recommendations issued

by the regional authority in this matter.” 20 ILCS 3955/26 (West 2020).

None of the circumstances discussed in section 19 are at issue here and, thus, publishing is not

prohibited. 20 ILCS 3955/19 (West 2020) (“No regional authority may disclose to any person

any materials which identify an eligible person unless the eligible person or legally authorized

person consents to such disclosure, except if and to the extent that disclosure may be necessary

for the appointment of a guardian for such eligible person.”)

¶ 22 Plaintiff focuses on the statute’s use of the word “may” to indicate that it was within the

Authority’s discretion to publish its findings but fails to acknowledge that Section 26 does not

allow for a hearing on that decision by the Authority. There is no indication that this decision is

subject to review or an appeal. No adversarial proceeding occurred in reaching the decision to

publish and the statute does not set forth any right to objection from the provider to publication.

Despite this lack of an adversarial hearing, plaintiff asserts that the report affected its rights,

duties, and privileges because the report would harm its reputation. Once again, we point out that

given the absence of the Authority’s report on appeal, there is no method to review plaintiff’s

claim that publication of the report would harm its reputation.

¶ 23 In O’Rourke, the plaintiff filed an action against her insurer for refusing to cover a bone

marrow transplant as part of her doctor’s recommended course of treatment for breast cancer. Id.

at 397. The insurer denied coverage and found that a bone marrow transplant was “experimental”

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and not a plan benefit. Id. at 397-98. The plaintiff filed a complaint with the Illinois Department

of Insurance (IDI). The IDI reviewed her claim, but did not conduct a formal hearing before

determining that the insurer was within its rights to deny the coverage. The IDI then closed the

plaintiff’s claim and she did not seek reconsideration. She then filed her complaint seeking

reimbursement for expenses for the bone marrow transplant and attorney fees under the

Insurance Code (215 ILCS 5/155 (West 1994)). Id. at 398-99. The insurer filed a motion to

dismiss the complaint, which the trial court granted. Id. at 399.

¶ 24 On appeal, the insurer argued, in part, that the IDI’s review of her complaint precluded

the plaintiff from relitigating the claims in the circuit court under the doctrines of res judicata

and collateral estoppel. Id. at 400-01. The reviewing court initially considered whether the IDI’s

determination on the plaintiff’s complaint was a final administrative decision. Id. The court

pointed out that “the term ‘hearing’ is appropriate to quasi-judicial proceedings and entitles the

parties to be present, to participate, and to obtain records of the proceedings.” Id. at 401.

¶ 25 The O’Rourke court then turned to the relevant sections of the Health Maintenance

Organizations Act (215 ILCS 125/4-6 (West 1994)) and observed that the statute did not provide

for a hearing, but only an investigation. Id. The court noted that the “term ‘investigate’ is

appropriate to a non-judicial function of an administrative agency.” Id. The court found that no

hearing preceded the IDI’s determination on the plaintiff’s complaint and “no findings of fact

were made, no record was created, and no order issued.” Id. Instead, an insurance analyst with

the IDI sent a one-page letter stating that the insurer was within its rights to deny coverage. The

reviewing court further observed that the IDI letter “did not indicate in any way that it is a final

and appealable agency decision, or that an appeal may be taken within a prescribed period of

time.” Id. at 402. The court regarded the absence of any language about appeal rights in the IDI’s

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letter “as a further indication that the letter was not intended to be a final and appealable agency

determination.” Id.

¶ 26 The reviewing court further observed that the IDI’s letter did not purport to affect the

legal rights, duties, or privileges of the parties as set forth in the Administrative Review Law. Id.

(citing 735 ILCS 5/3-101 (West 1994)). The court pointed out that the IDI’s letter was unlike

“agency actions which revoke, suspend or deny some license or privilege, affect an entitlement

to benefits, determine the applicability of certain rules or regulations, or seek to impose a duty on

some party,” because no such right or entitlement was affected and no duty created. Id. The court

thus concluded that the IDI’s letter did not qualify as an administrative decision and did not bar

the plaintiff’s cause of action under the doctrines of res judicata or collateral estoppel. Id. at 402-

03. However, ultimately the court concluded that the plaintiff’s complaint was properly

dismissed on the merits. Id. at 406.

¶ 27 We find the analysis in O’Rourke to be instructive. As previously observed, plaintiff is

not challenging the contents of the report or the investigation by the Authority, but rather, it is

contesting the Authority’s decision to make the report public. The statute at issue here, section

26 of the Guardianship Act, does not include language providing for a review or any form of an

adversarial hearing to determine whether the report will be made public. No procedure exists

under this statute for a provider to challenge the decision to publish a report. While plaintiff

correctly notes that the Authority is authorized to conduct a hearing, that authorization is

discretionary and such a hearing would be related to an investigation. 20 ILCS 3955/20 (West

2020) (“A regional authority may conduct hearings and compel by subpoena the attendance and

testimony of such witnesses and the production of such materials as are necessary or desirable

for its investigation.”). Nothing in section 20 suggests that the Authority’s discretionary right to

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conduct a hearing for an investigation extends to its decision to publish its report of findings.

¶ 28 Rather, section 26 allows a provider to submit its objections to the findings in the report

and those objections may be included in the public record if the provider so wishes. See 20 ILCS

3955/26 (West 2020); 59 Ill. Admin Code § 310.70(d)(2) (“the regional authority may make

public its report of findings, and any recommendations, upon a majority vote of the members in

attendance and constituting a quorum at a regularly scheduled or special meeting”). The

Authority did not act in quasi-judicial function in issuing a report and deciding to publish the

report on its website. Neither of these actions decided a dispute of adjudicative fact. See

Nyhammer, 2022 IL 128354, ¶ 1. Thus, the Authority acted within the confines of its statutory

authority.

¶ 29 Plaintiff relies on a Court of Claims case, Curry v. State, 55 Ill. Ct. Cl. 348 (2003), for

support. We observe that Court of Claims opinions are not precedential. Board of Library

Trustees of Village of Westmont for Use & Benefit of Ozinga Bros., Inc. v. Cinco Construction,

Inc., 276 Ill. App. 3d 417, 424 (1995); Lohan v. Walgreens Co., 140 Ill. App. 3d 171, 174 (1986)

(observing that the Court of Claims “was created only to receive and process claims against the

State; it was not to function as a court adjudicating cases and does not encroach on courts of

law”).

¶ 30 In Curry, the claimant was a nurse who successfully defended an indicated finding of

neglect by the Department of Children and Family Services (DCFS) and had the finding

expunged from her record. She then sought reimbursement for her legal fees pursuant to section

10-55(a) of the Administrative Procedure Act (5 ILCS 100/10-55(a) (West 2000)). Curry, 55 Ill.

Ct. Cl at 349. The State argued that: (1) the claimant’s license was not directly affected by the

indicated neglect finding, and (2) the indicated finding was made following an investigation and

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not a hearing. The claims court rejected both arguments. First, the court found that the claimant

had her rights, duties, and privileges affected by the indicated finding because that finding had an

indirect impact on the claimant’s licensing and employment privileges, as well as her “good

name and professional reputation.” Id. at 354-55. The court then held that the final administrative

decision occurred after the hearing requested by the claimant and the decision issued by the

DCFS director. Id. at 355. The court ultimately found in favor of the claimant and awarded her

attorney fees and costs. Id. at 357.

¶ 31 As noted above, Curry is not precedential, and we are not bound by its holding. See

Board of Library Trustees, 276 Ill. App. 3d at 424. Nevertheless, we find the decision does not

aid plaintiff’s argument on appeal. First, we point out that Curry was governed by the

Administrative Procedure Act, not the Administrative Review Law at issue in this case. Curry,

55 Ill. Ct. Cl. at 349. Second, the court’s analysis supports the Commission’s position that no

final administrative decision was issued in this case. Plaintiff relies on Curry primarily for the

Court of Claims’s conclusion that the claimant’s rights, duties, and privileges were affected by

the indicated neglect finding. However, plaintiff fails to reconcile the court’s second finding that

a final administrative decision was issued by the DCFS director following a contested hearing.

Id. at 355. Unlike the instant case, a hearing was conducted under the relevant statutory authority

and the claimant successfully had the indicated finding expunged. Id. at 355. For these reasons,

Curry is not helpful to plaintiff’s position.

¶ 32 In contrast, it is undisputed that no hearing occurred on any controverted facts and no

decision affecting plaintiff’s legal rights, duties, or privileges was rendered. Rather, the

Authority issued a report and provided plaintiff with the opportunity to object and submit a

written response. The Authority acted within its discretion pursuant to section 26 of the

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Guardianship Act when it decided to publish the report on its website. Absent an adversarial

proceeding, no final administrative decision was entered and the trial court lacked jurisdiction to

consider plaintiff’s petition for a writ of certiorari. Moreover, unlike in Curry, this court lacks

the ability to consider plaintiff’s contention that the report affects their rights, duties, and

privileges because, as previously observed, the report was not included in the record on appeal.

¶ 33 Since the trial court lacked jurisdiction to review plaintiff’s petition, it properly granted

the Commission’s motion to dismiss. Because our finding on jurisdiction disposes of plaintiff’s

appeal, we need not address plaintiff’s arguments related to the merits of its petition.

¶ 34 Based on the foregoing reasons, we affirm the decision of the circuit court of Cook

County.

¶ 35 Affirmed.