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1-03-1117

PRESIDING JUSTICE REID delivered the opinion of the court:

The plaintiffs, Judith and Robert Wright, appeal from thejudgment of the circuit court that dismissed with prejudice theirverified complaint for a declaratory judgment and injunctiverelief. The Wrights argue that the trial court erred when itdetermined that they were precluded, by their own actions, from access to the circuit court by filing motions to dismiss beforethe administrative agency. For the reasons that follow, wereverse the decision of the trial court and remand this cause forfurther proceedings.

BACKGROUND

On December 20, 2000, the Illinois Department ofProfessional Regulation (IDPR) filed separate complaints allegingvarious disciplinary charges against Judith and Robert. At thetime that the IDPR filed the complaints, Judith was a licensedclinical professional counselor and Robert was a licensedclinical social worker. The IDPR regulates both professions. See 225 ILCS 20/1 et seq. (West 2000); 225 ILCS 107/1 et seq.(West 2000).

The complaints alleged that the Wrights exploited theirtherapeutic relationships with patients whom they were treatingto promote business ventures they jointly owned and that thisconstituted unethical and unprofessional behavior. Thesebusiness ventures were: (1) an entity called the School ofExceptional Learning, Inc., in Chicago, Illinois, and (2) aretreat center in Elkhorn, Wisconsin. The complaints alsoalleged that the Wrights: (1) breached patient confidentiality,(2) failed to complete continuing education requirements, and (3)falsely reported on license renewal applications that they hadcompleted the requisite continuing education hours.

After the complaints were filed against them, the Wrightsboth allowed their licenses to lapse rather than renew them. Judith's license as a clinical professional counselor expired onMarch 31, 2001, and Robert's license as a clinical social workerexpired on November 30, 2001. After their licenses lapsed, theWrights both moved to dismiss the disciplinary complaints on thebasis that the IDPR lacked statutory authority to continue thedisciplinary proceedings against them since they were no longerlicensed. The administrative law judge assigned to the casesdenied the motions to dismiss.

On September 23, 2002, the Wrights filed a verifiedcomplaint for a declaratory judgment and injunctive relief. TheWrights requested entry of a judgment declaring that the IDPRlacked the authority to continue prosecuting them because theywere no longer licensed in their respective professions.

On December 27, 2002, the defendants filed a motion todismiss pursuant to section 2-615 of the Illinois Code of CivilProcedure. 735 ILCS 5/2-615 (West 2002). In the motion, thedefendants argued that the IDPR had the authority to continue thedisciplinary proceedings against the Wrights although they hadallowed their licenses to lapse. The defendants claimed that theWrights were required to exhaust their administrative remediesand wait until the disciplinary proceedings before the IDPR hadconcluded before seeking relief in the trial court. The Wrightsfiled a response in which they argued that their complaint stateda cause of action and that they were not required to exhaustadministrative remedies because they were challenging thejurisdiction of the IDPR.

Although the defendants filed a section 2-615 motion todismiss, the trial judge treated it as a section 2-619(a)(3)motion to dismiss. 735 ILCS 5/2-619(a)(3)(West 2002). On March17, 2003, the trial court entered an order wherein it granted thedefendants' motion to dismiss with prejudice "for the reasons setforth on the record." The trial judge stated that she wasdismissing the complaint because the Wrights had availedthemselves of the relief of the administrative agency before theyhad filed their motions to dismiss in the administrativeproceedings. Consequently, the trial court determined that theWrights had therefore waived any right to challenge the IDPR'sjurisdiction in the circuit court until the administrativeproceedings were complete. Specifically, the trial court madethe following holding:

"Administrative agencies are not different thanany other plaintiff that presents itself to the court. If you want to attack the jurisdiction of something,you must do it prior to acting on the case. That hasto be your motion. Whether it's a motion to quashservice or proper jurisdiction. Whatever it is. Youcan't come to the court, appear before the agency andsay give me some relief, and then say I am not going toproceed because you don't have proper jurisdiction. Jurisdictional arguments must be raised before youavail yourself of the body.

I believe that since you availed yourself with therelief of the administrative agency, you are stuck withthat relief until you exhaust your administrativeremedies. And then you may raise that point during theadministrative agency so it can be a question forreview if you choose to do that. And the court canlook at it on administrative review if that particularissue deserves some additional weight. I don't knowwhat the basis of your administrative review will be.

But clearly, in looking at the case law thataddressed the issues that you talked about, it appearsthat the administrative agency does have a right tocontinue to proceed in a proceeding once it has startedeven though the license expired during the course ofthe proceedings. That appears to be consistent withthe case law. But that's not what I am ruling on. Iam ruling it based upon the jurisdictional question,which I think it is appropriate to bring ajurisdictional argument before the court.

But I believe once you avail yourself of theservices of the administrative agency that by filingthe Motion to Dismiss, and then attacking jurisdictionhere that that's an inappropriate process. So, I amdenying your motion for that reason pursuant to[section 2-619(a)(3)]."

Thereafter, the Wrights timely filed a notice of appeal. Subsequently, the IDPR dismissed the charges against Robertwithout prejudice. Consequently, there are no disciplinarycharges currently pending against Robert. However, disciplinarycharges are still currently pending against Judith.
 

ANALYSIS

Section 2-619 allows for the dismissal of a complaint on thebasis of issues of law or easily proven issues of fact, whiledisputed questions of fact are reserved for trial proceedings, ifnecessary. McCoy v. Illinois International Port District, 334Ill. App. 3d 462, 466 (2002). In a section 2-619 proceeding, thedefendant bears the burden of proving any affirmative defense itrelies upon. Streams Condominium No. 3 Ass'n v. Bosgraf, 219Ill. App. 3d 1010, 1013 (1991). Under section 2-619, thedefendant admits to all well-pled facts in the complaint, as wellas any reasonable inferences that may be drawn from those facts(Streams Condominium, 219 Ill. App. 3d at 1013), but asks thecourt to conclude that there is no set of facts which wouldentitle the plaintiff to recover (Wolf v. Bueser, 279 Ill. App.3d 217, 222 (1996)). As long as there is no genuine issue ofmaterial fact and the defendant is entitled to judgment as amatter of law, the complaint properly may be dismissed. Wolf,279 Ill. App. 3d at 222. The parties may ask the court toconsider the pleadings, as well as any affidavits and depositionevidence (Streams Condominium, 219 Ill. App. 3d at 1014), and totake judicial notice of facts contained in public records wheresuch notice will aid in the efficient disposition of the case(Village of Riverwoods v. BG Ltd. Partnership, 276 Ill. App. 3d720, 724 (1995)). However, the court must construe all thepleadings and supporting matter in the light most favorable tothe party opposing the motion for involuntary dismissal. Wolf,279 Ill. App. 3d at 222. On appeal, a dismissal pursuant tosection 2-619 is addressed de novo. Wolf, 279 Ill. App. 3d at222.

A party aggrieved by an administrative decision ordinarilycannot seek judicial review without first pursuing all availableadministrative remedies. Castaneda v. Illinois Human RightsComm'n, 132 Ill. 2d 304, 308 (1989). Requiring the exhaustion ofremedies allows the administrative agency to fully develop andconsider the facts of the cause before it; it allows the agency to utilize its expertise; and it allows the aggrieved party toultimately succeed before the agency, making judicial reviewunnecessary. Castaneda, 132 Ill. 2d at 308. The doctrine alsohelps protect agency processes from impairment by avoidableinterruptions, allows the agency to correct its own errors, andconserves valuable judicial time by avoiding piecemeal appeals. Castaneda, 132 Ill. 2d at 308.

"The exhaustion doctrine includes administrative review inthe circuit court. Where the Administrative Review Law [(735ILCS 5/3-101 et seq. (West 2002))] is applicable and provides aremedy, a circuit court may not redress a party's grievance through any other type of action. The court's power to resolvefactual and legal issues arising from an agency's decision mustbe exercised within its review of the agency's decision and notin a separate proceeding. Dubin v. Personnel Board, 128 Ill. 2d490, 498-99 (1989); see Midland Hotel Corp. v. Director ofEmployment Security, 282 Ill. App. 3d 312, 316-17 (1996).

This aspect of the exhaustion doctrine is well established.However, it has several exceptions that are equally wellestablished. Two such exceptions are 'where no issues of fact arepresented or agency experience is not involved *** or where theagency's jurisdiction is attacked because it is not authorized bystatute.' Castaneda, 132 Ill. 2d at 309. This court has heldthat where an administrative assertion of authority to hear ordetermine certain matters is challenged on its face as notauthorized by the enabling legislation, such a facial attack doesnot implicate the exhaustion doctrine and exhaustion is notrequired. This court has explained that where an agency'sstatutory authority to exercise jurisdiction is at issue, noquestions of fact are involved. The agency's particularexpertise is not implicated in the necessary statutoryinterpretation. Board of Governors of State Colleges &Universities for Chicago State University v. Illinois FairEmployment Practices Comm'n, 78 Ill. 2d 143, 147-48 (1979),quoting Landfill, Inc. v. Pollution Control Board, 74 Ill. 2d541, 550-51 (1978); accord Reiter v. Neilis, 125 Ill. App. 3d774, 777-78 (1984)('plaintiffs did not have to comply with theAdministrative Review Act in order to challenge the subjectmatter jurisdiction of the zoning board of appeals')." County ofKnox ex rel. Masterson v. Highlands, L.L.C., 188 Ill. 2d 546,551-52 (1999).

The Wrights argue that the trial court erred when it grantedthe defendants' motion to dismiss. The Wrights complain thetrial court improperly held that because they previously hadfiled motions to dismiss before the administrative tribunal, theymust now exhaust their administrative remedies. The Wrightscontend that this is an instance in which the exhaustion ofremedies doctrine does not apply.

The Wrights are correct. In their motions to dismiss beforethe IDPR and in their complaint for injunctive relief before thetrial court, the Wrights challenged the jurisdiction of theadministrative agency. Specifically, the Wrights requested thatthe trial court enter a judgment which declared that thedefendants lacked the statutory authority to continue prosecutingthem because they were no longer licensed in their respectiveprofessions.

The exhaustion of remedies doctrine does not apply in thissituation because the Wrights attacked the agency's jurisdictionon the basis that it was not authorized by statute to proceedagainst them. Consequently, the trial court must be reversed. See Office of the Lake County State's Attorney v. Illinois HumanRights Comm'n, 200 Ill. App. 3d 151, 156 (1990)("The exhaustionof remedies doctrine does not preclude a challenge to thejurisdiction of the administrative agency, however. [Citation.]This is because such a determination involves no questions offact which would implicate the agency's particular expertise.[Citation.] The exhaustion of administrative remedies is notrequired where a party attacks an agency's assertion ofjurisdiction 'on its face and in its entirety on the ground thatit is not authorized by statute.' [Citation.]" (Emphasis added)).

At oral argument and in their briefs, the defendants agreedwith the Wrights and conceded that the trial court erred when itdetermined that the Wrights had to exhaust their administrativeremedies. Furthermore, the defendants argue that as to Robert,this appeal is moot because the disciplinary charges against himbefore the IDPR have been dismissed. The defendants maintainthat because there are no disciplinary charges pending againstRobert, this court cannot grant him any relief that would affecthim.

However, as to Judith, the defendants acknowledge that thetrial court determined that their motion to dismiss should begranted on the grounds that the Wrights had waived any right tochallenge the IDPR's jurisdiction in the circuit court until theadministrative proceedings were complete. The defendants contendthat they did not assert this ground in their motion to dismissand they do not urge it as a basis for affirmance on appeal. Thedefendants concede that the Wrights were not required to exhausttheir remedies before seeking relief in the circuit court inlight of the case law indicating that exhaustion is not requiredwhen the agency's statutory jurisdiction is at issue, relying onCounty of Knox ex rel. Masterson v. The Highlands L.L.C., 188Ill. 2d 546, 552 (1999).

Instead, the defendants argue that a judgment may beaffirmed on any ground apparent from the record, even if thecircuit court did not rely upon that ground. Consequently, thedefendants urge this court to affirm the trial court's decisionon the basis that the IDPR had the authority to continue thedisciplinary proceedings after Judith allowed her license tolapse.

"A case on appeal is rendered moot where the issues thatwere presented in the trial court do not exist any longer becauseintervening events have rendered it impossible for the reviewingcourt to grant the complaining party effectual relief.[Citations.] An exception to the mootness doctrine exists whenthe question involved is of a substantial public nature, anauthoritative determination for future guidance is needed, andthe circumstances are likely to recur. [Citations.] Anotherexception exists for cases involving events of short durationthat are capable of repetition, yet evading review. [Citations.] For that exception to apply, there must be a reasonableexpectation that the same complaining party would be subject tothe same action again and the action challenged must be too shortin duration to be fully litigated prior to its cessation. [Citation.] These exceptions are to be construed narrowly andrequire a clear showing of each criterion to bring the casewithin the terms. [Citation.]" In re India B., 202 Ill. 2d 522,542-43 (2002).

As to Robert, this appeal is not moot. The IDPR dismissedthe charges against Robert without prejudice. Consequently, theIDPR may bring the same charges against Robert at a later dateand this same issue may be revisited.

Furthermore, the only issue that is to be considered onappeal is whether the Wrights, by filing their motions to dismissbefore the administrative agency were precluded from access tothe trial court. This is the only issue that is before thiscourt. Now, that we have answered that question, it is the jobof the trial court to determine whether the IDPR has subjectmatter jurisdiction to hear this matter.

CONCLUSION

For the foregoing reasons, the decision of the trial court is reversed and the cause remanded for further proceedings.

Reversed and remanded.

Campbell, J. and O'Brien, J., concur.