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Call To Order

Newsletter of the Illinois Association of Administrative Law Judges June 2016 Vol. 2 No. 1

IAALJ Officers and Board Members for 2015-2016:

President - Hon. Yolaine Dauphin Vice President - Hon. Ted Sherrod Secretary - Hon. Joy Airaudi Treasurer - Hon. Stanley Cygan

EXECUTIVE BOARD Hon. Ted Sherrod Hon. Stan Cygan Hon. Edward Schoenbaum Hon. Robbin Perkins Hon. Claudia Sainsot Hon. Audrey Wade Hon. Yolaine Dauphin EX OFFICIO – Hon. Camela Gardner

Past Event Highlight – May 12th Reception

By Hon. Yolaine Dauphin

On Thursday, May 12, 2016, IAALJ members gathered at the Illinois State Bar Association’s Chicago Office for a membership meeting followed by a reception. The event was intended for IAALJ members to get to know each other better while advancing the business of the association. Judge Stan Cygan, Treasurer, provided a brief report on our finances and membership renewals. Judge Ted Sherrod, Vice-President, reported on research to use PayPal to provide an electronic means for membership payments. Judge Camela Gardner, IAALJ ex officio and National Association of Administrative Judiciary (NAALJ) Board Member, provided an update on NAALJ activities, including an outline of the upcoming Annual Meeting. Judge Claudia Sainsot reported on plans for a Lake Michigan cruise. Members enthusiastically endorsed the plan for the cruise.

Judge Ann Breen-Greco had asked for time in the meeting to discuss the Central Panel pilot program being advanced by Governor Bruce Rauner. She reported on an initial contact from the Governor’s office, and the possibility that input from administrative law judiciary may be sought and considered. A lively discussion followed as to the pros and cons of a central panel in Illinois, and particular concerns as to the appointment process and impact on current administrative law judges.

Following the business meeting, IAALJ members enjoyed hors d’oeuvres, libations and great company. Newsletter of the Illinois Association of Administrative Law Judges June 2016, Vol. 2 No1 ______

Kudos to Judges Camela Gardner and A word of reassurance to all: your cases can Claudia Sainsot for organizing this wait; indeed we are certain they will still be enjoyable evening for our members. there upon your return Friday morning.

Tickets are $50 and include a drink. Look to our website, www.iaalj.org, for more Upcoming Event–IAALJ to Host information. Invitations will be emailed in Architectural Lake and River Cruise July the near future. Come enjoy some fun in the 28th at the Wrigley Building! (400 North sun! Michigan Ave.). Hope to see you there! By Hon. Yolaine Dauphin and Hon. Claudia Sainsot

Articles

Smoke N Stuff v. City of Chicago, 2015 IL App. (1st) 140936: Administrative Law and On June 30, 2015, thanks to the efforts of Judges Claudia Sainsot and Sheila Maloney, the One-Act, One-Crime Rule- Penalties IAALJ members had a chance to get to Can be Dire, Even when No Prison Time is know each other while having fun aboard Involved. the Tall Ship Windy City’s Architectural Tour on beautiful Lake Michigan. The By Hon. Darlene Redmond sailing event was a success and IAALJ Members and their guest enjoyed socializing Smoke N Stuff was a licensed while obtaining little nuggets about tobacco dealer in Chicago. On July 31, Chicago’s rich history. 2012, a city inspector visited Smoke N Stuff and found 1,107 unstamped packs of After a year of hard work deciding cases for cigarettes stashed in a hole in the wall of the State of Illinois and a number of other Smoke N Stuff’s storeroom. The City of agencies and cities, it is time to sail forth once again. On July 28, 2016, IAALJ will Chicago charged Smoke N Stuff with failure host an after work event with Wendella to have City and County tax stamps proving Boats at the Wrigley Building. IAALJ payment of taxes on those cigarettes. members and friends are asked to mark their calendars for this fun event when we will The Administrative Hearing Officer cruise on the Chicago River, enjoy a drink found the inspector’s testimony to be or two, and socialize under the cool breezes. credible and ruled that Smoke N Stuff

2 Newsletter of the Illinois Association of Administrative Law Judges June 2016, Vol. 2 No1 ______

violated ordinances prohibiting the The Appellate Court also determined purchasing or receiving of cigarettes without that revocation of Smoke N Stuff’s license City or County tax stamps and revoked was not unduly harsh, giving deference to Smoke N Stuff’s license to sell cigarettes. the administrative agency’s decision on The Hearing Officer determined that the sanctions. In so ruling, the Appellate Court violations constituted two separate acts: not gave short shrift to Smoke N Stuff’s having City tax stamps, and also not having argument that the inspector’s investigation County tax stamps. The Hearing Officer was not proper and did not lead to evidence further found that the action against Smoke of a knowing violation. As Smoke N Stuff N Stuff was civil in nature and therefore, the did not raise these arguments at hearing, Criminal Code (the one-act, one crime rule) they were procedurally defaulted and could did not apply. Smoke N Stuff filed a writ of not be raised for the first time on review. certiorari to the circuit court, which Thus, Smoke N Stuff could neither claim the affirmed the Hearing Officer in toto. investigation was improper nor maintain that the City had failed to prove a knowing On appeal, the First District violation of the municipal ordinance. Next, Appellate Court noted that Smoke N Stuff the Appellate Court noted the should have sought administrative review Administrative Hearing Officer’s findings through the Administrative Review Law, that Smoke N Stuff had over 1,000 packs of 735 ILCS 5/3-101, et seq., and reviewed the illegal cigarettes; Smoke N Stuff failed to Administrative Hearing Officer’s decision produce a record of its cigarette transactions pursuant to that body of law, as certiorari is for inspection; and Smoke N Stuff concealed used only when the Administrative Review the cigarette packs in the back room. The Law is not available. It determined that the Appellate Court also noted that Smoke N one-act, one-crime rule does not apply to Stuff did not present any mitigating municipal ordinance violations when the evidence at the administrative hearing. municipality does not seek incarceration. In Giving the presenting scenario, the so ruling, the Appellate Court noted that the Appellate Court could not say that one-act, one-crime rule prevents a criminal revocation of Smoke N Stuff’s license was defendant from being convicted of multiple arbitrary or capricious. Neither could the crimes when one of those crimes is a lesser court find the revocation overly harsh in included offense, which was not the case for view of the non-existent mitigating Smoke N Stuff. It also declined to follow a circumstances. The Appellate Court finally Second District Appellate Court decision on commented that, when entertaining Smoke that issue, Village of Sugar Grove v. Rich, N Stuff’s writ of certiorari, the circuit court nd (2 Dist. 2004), 347 Ill. App. 3d 689. correctly considered previous violations in 2007, 2009 and 2011, all of which, were tobacco-related.

violations and fined it $1,050. According to the Appellate Court, the final administrative judgment was registered in 2004. In 2009, the City recorded the administrative Stone Street Partners, LLC v. City of judgment with the County Recorder of Chicago Department of Administrative Deeds Hearings, 2014 IL App (1st) 123654: A Stone Street Partners contended that its Reminder to Administrative Agencies principals had no idea that the 1999 Regarding Due Process. judgment existed until 2011. In September By Hon. Claudia Sainsot of 2011, Stone Street Partners’ attorney conducted a Freedom of Information Act (Note: this matter was argued in the Illinois request to the City and received a copy of Supreme Court in the fall of 2015 and an the 1999 order. In October of 2011, Stone opinion is expected soon). Street Partners filed a motion to vacate the 1999 order with the City’s Department of In 1999, a City building inspector cited Administrative Hearings, (DOAH) arguing Stone Street Partners, LLC for several that it had never received notice of the 1999 building code violations. A City ordinance violations and that Mr. Johnson had never required service of the notice of violation on been an authorized representative of Stone Stone Street Partners as the landowner, at Street Partners in any capacity, much less, a the address of its registered agent. legal one. Stone Street Partners also Nevertheless, the City served the notice on presented an affidavit stating that Mr. Stone Street Partners at the address of the Johnson, a non-attorney, was the caretaker building in violation, which was not the of a former Stone Street Partners manager same as the location of Stone Street who had been gravely incapacitated in 1998, Partners’ registered agent. and who no longer serves as manager for Keith Johnson, a non-attorney, filed a Stone Street Partners. The hearing officer written appearance on Stone Street Partners’ found the DOAH did not have jurisdiction to behalf at the administrative hearing. Mr. vacate the 1999 order, because, according to Johnson was not a corporate principal or the hearing officer, the governing ordinances employee of Stone Street Partners. At some only allowed the DOAH to vacate default point in time, the City destroyed almost all judgments within 21 days. Of course, of the administrative record, but what was Johnson’s participation at the administrative left indicated that Johnson presented some hearing meant that Stone Street Partners was exhibits to the hearing officer, which were not defaulted; Stone Street Partners lost the unpersuasive because the hearing officer building code violation case on the merits. found Stone Street Partners liable for the

Stone Street Partners then filed a multi- while non-attorneys can represent a count complaint in the Circuit Court, corporation in negotiations with customers seeking administrative review, a declaratory and sign contracts for the corporation, judgment, quiet title and damages for administrative hearings involve the slander of title. The Circuit Court granted admission of evidence and the examination the City’s Section 2-619 Motion. and cross-examination of sworn witnesses, all of which clearly constitute the practice of On appeal, the Appellate Court commented law. It noted that hearings at DOAH can that, while circuit court judges do not include large judgments and determinations preside over City proceedings and the rules as to whether a person can practice his or of evidence may be relaxed in DOAH her profession. It stated that there is little proceedings, defendants in those hearings distinction in the range of remedies available are entitled to due process. It ruled that the in administrative proceedings and in circuit City’s failure to abide by its ordinances court proceedings. requiring service of the notice of violations on a registered agent violated Stone Street The Appellate Court concluded that the Partners’ due process rights. It noted that, to representation of corporations at pass constitutional muster, notice must administrative hearings, particularly those conform to the rules governing notice, which involve testimony from sworn something that was not done in the present witnesses, interpretation of laws and case. ordinances, and the imposition of punitive fines, must be made by a licensed attorney. Regarding whether Stone Street Partners Citing the long history requiring a waived any objection to service through Mr. corporation to be represented by counsel in Johnson’s participation at the hearing, the legal proceedings, it commented that the Appellate Court noted that the dearth of reason for this requirement is that, in legal information about what happened at the proceedings, the interests of a corporate hearing was due to the fact that the City had principal and those of the corporation do not destroyed most of the records from the necessarily mesh. hearing, even though the City was attempting to collect on that fine, albeit “at a In so ruling, the Appellate Court rejected glacial pace.” It stated that generally, several arguments made by the City and by appearance and active participation in a the Illinois Attorney General as amicus proceeding, of course, waives any objection curiae. The court was unimpressed by the regarding improper service. fact that several administrative agencies, as well as small claims court, allow a corporate However, the Appellate Court did not end its principal, manager or officer to represent a analysis at that point. It determined that corporation. It ruled that Mr. Johnson’s

appearance at the hearing did not change the slander of title claim, asserting the statute of result because a defendant does not waive an limitations in the Local Governmental and objection to jurisdiction where the Governmental Tort Immunity Act, 745 ILCS participant at hearing was not authorized to 10/2-107. do so, even when the participant is an attorney. Continuing Legal Education Seminars: The Appellate Court further noted that Stone Our Members Shine! Street Partners was not held in default in 1999, although, according to the Appellate By Hon. Yolaine Dauphin Court, perhaps it should have been defaulted on the basis that Mr. Johnson’s appearance As Symposium Planning Committee Chair, I on behalf of Stone Street Partners was a extend congratulations to Judge Ann Breen- nullity. The 1999 DOAH order mentioned Greco, Symposium Planning Committee nothing about default and was clearly Member and Moderator; and Judge Joy adjudication on the merits. The Appellate Airudi, Symposium Planning Committee Court concluded the DOAH correctly Member, for their contributions to the determined that it had no jurisdiction to successful November 5-6, 2016 Symposium consider Stone Street Partners’ motion to on College Sexual Assaults. The event vacate and the circuit court correctly held at Columbia College, the School of the confirmed that decision. The Appellate Art Institute of Chicago, Southern Illinois Court thus affirmed the dismissal of the University Carbondale, and the University administrative review of the DOAH’s 2011 of Illinois at Springfield brought together decision refusing to vacate the 1999 DOAH more than 250 judges, attorneys, college order. administrators, psychologists and social workers to consider the ongoing epidemic of The Appellate Court then ruled that the sexual assaults on college campuses and City’s failure to provide Stone Street positive steps being taken by the U.S. Partners with a procedure to quash service Department of Education Office for Civil of process and vacate void orders left Stone Rights, the National Institute of Justice, the Street Partners without an administrative State of Illinois, various public officials and remedy. Stone Street Partners could not be survivors/advocates to stem the tide of the expected to timely seek administrative assaults. School administrators participated review of an order of which, Stone Street in a panel discussion to speak of their Partners was not properly notified. It then efforts, while another panel highlighted the concluded that a void order may be attacked difficulties in prosecuting college sexual at any time. (Id. at 26-28). Lastly, the assault cases, with attendees hearing from Appellate Court affirmed dismissal of the prosecutors and public defender. Also

featured was a panel discussion on the Legal System in Police Related recovery process for survivors of college Cases," featured panelists Patrick Johnson, sexual assaults Assistant U.S. Attorney, Northern District of Illinois, Standish Willis, Civil Rights We hope to publish an in-depth article on Attorney, and Judge Sophia Hall, Circuit the Symposium in our next Newsletter, Court of Cook County, Chancery Division. highlighting the stellar faculty, led by The speakers discussed procedures Keynote Speaker Catherine Lhamon, followed in the investigation of police Assistant Secretary, Office for Civil Rights, shootings, civil rights issues, and restorative U.S. Department of Education. Meanwhile, justice as an effective solution to bridge the heartfelt thanks to Justice Thomas Kilbride, gap between police and communities. Illinois Supreme Court, who provided opening remarks; Justice Cynthia Cobbs, who introduced Keynote Speaker Lhamon; Congratulations are due to Judge. Ann Panel Moderators Justices Shelvin Louise Breen-Greco on yet another stellar seminar. Marie Hall, Michael Hyman, and P. Scott The May 11, 2016, seminar entitled Sexual Neville of the Illinois Appellate Court, Assault Awareness: Our Work Continues, Judge Marilyn Johnson (ret.), and Sharmili featured as panelists Christine Evans, Legal Majmudar, Rape Victims Advocate; and Director, CAASE; Heather Imry, Catharsis Symposium Moderator Carol Casey of the Productions; Judge Virginia Kendall, U.S. Public Guardian’s Office. Congratulations to District Court for the Northern District of all members of the Symposium Planning Ill.; and Tanya Sinclair, Attorney and Committee, with particular thanks to Anne Advocate for High School Women. The Bent, Founder, Porchlight Counseling seminar presented updates on the topic of Services, Tracy Douglas, ISBA college sexual assaults but also included Administrative Section Council Chair, discussions of sexual assault of high school Emily Masalski, ex officio, ISBA Standing students, human trafficking, particularly the Committee on Women & the Law, and Hon. intersection between human trafficking and Patricia Jackowiak, Director/Chief college sexual assaults, and the continuing Administrative Law Judge, City of Chicago public health issue of sexual violence Department of Administrative Hearings. against women. I was privileged to serve as Co-coordinator of the seminar. Congratulations to Judge Ann Breen-Greco, Planning Committee Chair and Moderator, for the successful March 16, 2016, program Last, but by no means least, the IAALJ owes on police practices. The seminar entitled a debt of gratitude to Judge Camela Gardner Tragedy Has Struck: The Role of the for her work on the October 2015 NAALJ

Annual Meeting. Judge Gardner and bylaws, the NAALJ Model Code of coordinated the meeting, which featured two Judicial Conduct for State Administrative days of seminars with stellar faculty Law Judges, access to the Illinois members speaking on such diverse topics as Administrative Code, a calendar of events, the legalization of marijuana, courtroom notices of new judicial and administrative security, and drafting cogent decisions. The law opportunities and other valuable meeting also featured various activities information. including a tour of the federal courthouse, an opening night reception, a luncheon honoring fellowship recipients, and the The IAALJ is Accepting Submissions! installation of NAALJ officers at a dinner fundraiser. All events went without a hitch, The IAALJ Newsletter wants your at least in the eyes of attendees, as Judge submissions! If you have an article you Gardner worked throughout to ensure the would like to submit, events you would like success of each event. Congratulations to publicized, an IAALJ member you would Judge Gardner on a superlative annual like to publicly congratulate, or useful meeting! practice tips you would like to share, PLEASE contact our editor, Darlene

Redmond at [email protected]. Please include the word “newsletter” in the subject line. Submissions will be reviewed and We are on the Web! published in the next upcoming Newsletter.

The IAALJ has established a new website on the Internet which we hope will grow and become a significant vehicle for communication and knowledge about administrative law and adjudication in Illinois.

The IAALJ’s website is at www.iaalj.org.

The website contains a description of the IAALJ and an application form for new members, along with the names of the IAALJ’s Executive Board and its officers. It also contains links to the National Association of Administrative Law Judiciary (“NAALJ”) website, the IAALJ constitution