Gallaher v. Hasbrouk , 2013 IL App (1st) 122969 ( 2014 )

Illinois Official Reports
Appellate Court
Gallaher v. Hasbrouk, 2013 IL App (1st) 122969
Appellate Court VICTORIA GALLAHER, Plaintiff-Appellant, v. LaMAR
Caption HASBROUK, Director of Public Health, JOHN ABRELL, Chief
Administrative Law Judge of the Department of Public Health, and
THE DEPARTMENT OF PUBLIC HEALTH, Defendants-
Appellees.
District & No. First District, Fifth Division
Docket No. 1-12-2969
Rule 23 Order filed September 30, 2013
Rule 23 Order
withdrawn October 31, 2013
Opinion filed December 31, 2013
Held In an action filed by a paramedic and emergency medical services
(Note: This syllabus instructor seeking to suspend and dismiss an administrative action by
constitutes no part of the the Department of Public Health to revoke her instructor’s license, the
opinion of the court but trial court properly found that plaintiff was not required to exhaust her
has been prepared by the administrative remedies and it also properly entered summary
Reporter of Decisions judgment against plaintiff after rejecting her contention that the
for the convenience of Department was required to implement a “plan of correction” pursuant
the reader.) to section 3.130 of the Emergency Medical Services (EMS) Systems
Act to address her alleged misconduct before revoking her license,
since section 3.130 applies to facilities, systems, and equipment, not
individuals.
Decision Under Appeal from the Circuit Court of Cook County, No. 11-CH-21745; the
Review Hon. Franklin U. Valderamma, Judge, presiding.
Judgment Affirmed.
Counsel on Emily Johnson, of Hunter & Johnson P.C., of Godfrey, and Edward
Appeal Clancy, of Ungaretti & Harris, LLP, of Chicago, for appellant.
Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
Solicitor General, and Christopher M.R. Turner, Assistant Attorney
General, of counsel), for appellees.
Panel JUSTICE McBRIDE delivered the judgment of the court, with
opinion.
Presiding Justice Gordon and Justice Palmer concurred in the
judgment and opinion.
OPINION
¶1 Plaintiff Victoria Gallaher, a paramedic and emergency medical services instructor, sought
injunctive relief and a declaratory judgment from the circuit court of Cook County to suspend
and ultimately dismiss an administrative action brought by the State of Illinois to revoke her
instructor’s license. The trial court enjoined the administrative action, but later rejected
Gallaher’s contention that the defendant State agency was misconstruing its statutory authority
to revoke her license without first implementing a “plan of correction” to address her alleged
misconduct. Gallaher appeals from the trial court’s adverse ruling on cross-motions for
summary judgment, primarily contending that a section of the Illinois Emergency Medical
Services (EMS) Systems Act (hereinafter EMS Act) entitled “Facility, system, and equipment
violations; Plans of Correction” (210 ILCS 50/3.130 (West 2010)), applies to individuals and
entitled Gallaher to a plan of correction. The three defendants to this appeal are LaMar
Hasbrouk, Director of the Department of Public Health, John Abrell, chief administrative law
judge of the Department of Public Health, and the Department of Public Health, which we will
refer to collectively as the Department.
¶2 Gallaher resides in Nauvoo, Illinois, a small community west-southwest of Chicago on the
banks of the Mississippi River, across from the state of Iowa. Gallaher contends she currently
holds “Emergency Medical Technician-Paramedic” or “EMT-P” licenses in the states of
Illinois (210 ILCS 50/3.100, 3.50(c) (West 2012)), Iowa, and Missouri, although the
Department counters that her Missouri EMT-P license expired on September 30, 2009. In any
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event, the credential at issue is Gallaher’s Illinois license as an “EMS Lead Instructor” (210
ILCS 50/3.65 (West 2010)). 1
¶3 Section 3.65 of the EMS Act is entitled “EMS Lead Instructor” and consists of two parts.
The first part, subsection (a), defines “EMS Lead Instructor” as “a person who has successfully
completed a course of education as prescribed by the Department, and who is currently
approved by the Department to coordinate or teach education, training and continuing
education courses, in accordance with standards prescribed by this Act and rules adopted by
the Department pursuant to this Act.” 210 ILCS 50/3.65(a) (West 2010).
¶4 The second part, subsection (b), specifies that the Department has “the authority and
responsibility” to take certain actions with regard to EMS Lead Instructors. These acts include
to dictate minimum education requirements and testing requirements for EMS Lead Instructor
candidates, to charge fees to each EMS Lead Instructor candidate for his or her examination
and certification and recertification, to require that courses for EMS personnel be
“coordinated” by at least one approved EMS Lead Instructor, and to set “standards and
procedures for awarding EMS Lead Instructor approval to persons previously approved by the
Department to coordinate such courses.” Of particular interest here is that the final paragraphs
of subsection (b) state that the Department also has “the authority and responsibility” to:
“(7) Suspend or revoke the approval of an EMS Lead Instructor, after an
opportunity for a hearing, when findings show one or more of the following:
(A) The EMS Lead Instructor has failed to conduct a course in accordance with
the curriculum prescribed by this Act and rules adopted by the Department
pursuant to this Act; or
(B) The EMS Lead Instructor has failed to comply with protocols prescribed by
the Department through rules adopted pursuant to this Act.” 210 ILCS 50/3.65(b)
(West 2010).
¶5 Section 3.65 is the statute the Department has relied upon in its proceedings against
Gallaher. 210 ILCS 50/3.65 (West 2010). According to the Department, Gallaher misstepped
in 2007, first by failing to obtain a site code and system approval for EMS courses she began
teaching at the high school in Warsaw, Illinois, and again when she was the Lead Instructor for
an EMS conference convened in Nauvoo where a speaker taught “pediatric
warming/re-warming methods which were not part of the National EMT Curriculum, were
contrary to accepted standards of pre-hospital care, unaccepted by pediatric medicine and ***
dangerous.” The Illini EMS System/Genesis Medical Center (not the Department itself)
(hereinafter Illini EMS System), notified Gallaher of its intent to suspend her license on April
19, 2007, but on May 21, 2007, the Illini EMS System converted the proposed suspension into
a one-year probation with conditions, essentially that Gallaher could not teach an EMS course
without being directly supervised by the Illini EMS System coordinator. According to the
1
The record indicates Gallaher was licensed for the four-year term ending February 28, 2011, and
that she reapplied during these proceedings. We presume the Department granted her request subject to
the outcome of its administrative action.
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Department, Gallaher taught at the Warsaw high school in violation of the local probation and
supervision order.
¶6 On or about November 9, 2007, the Department (not the Illini EMS System) called
Gallaher and her attorney to a meeting to ask for a “plan of correction,” purportedly to avoid
further disciplinary measures and a formal administrative action. In December 2007, Gallaher
submitted a proposed plan of correction which included that she obtain a site code before the
start date of any new course and be supervised for 90 days by an EMS Lead Instructor who
would evaluate Gallaher’s teaching.
¶7 The Department did not respond to Gallaher’s proposed plan of correction and, instead, in
February of 2008, filed a notice of intent to suspend her teaching license based on her conduct
at the high school. The Department alleged that Gallaher’s failure to obtain site codes and
system approval from the local EMS medical director (210 ILCS 50/3.100 (West 1996)) was
contrary to the protocol prescribed by the Department through its administrative rules and was
unprofessional in violation of the EMS Act. See 77 Ill. Adm. Code 515.500(a), (b), (c) (2003);
210 ILCS 50/3.65(b)(7), 3.50(d)(8) (West 1996). The Department further alleged that
Gallaher’s failure to prevent the nonstandard teaching or to take any steps to correct the
nonstandard teaching was contrary to the requirement that classes be consistent with the
national EMT curriculum adopted by the Department and was unprofessional. 77 Ill. Adm.
Code 515.500(d) (2003); 210 ILCS 50/3.50(d)(8), 3.65(b)(7)(A) (West 1996). In March of
2008, Gallaher denied the Department’s allegations, refiled her plan of correction, and
requested an administrative hearing. It was in these administrative proceedings that Gallaher
first argued that prior to initiating a license suspension hearing pursuant to section 3.65 of the
EMS Act, the Department had to follow the protocol set out in section 3.130 of the EMS Act.
210 ILCS 50/3.65, 3.130 (West 1996). The version of section 3.130 that was then in effect was
simply entitled “Violations; Plans of Correction” and stated as follows.
“Except for emergency suspension orders, or actions initiated pursuant to Section
3.90(b)(10) of this Act [which concerns hospitals known as trauma centers], prior to
initiating an action for suspension, revocation, denial, nonrenewal, or imposition of a
fine pursuant to this Act, the Department shall:
(a) Issue a Notice of Violation which specifies the Department’s allegations of
noncompliance and requests a plan of correction to be submitted within 10 days after
receipt of the Notice of Violation;
(b) Review and approve or reject the plan of correction. If the Department rejects
the plan of correction, it shall send notice of the rejection and the reason for the
rejection. The party shall have 10 days after receipt of the notice of rejection in which
to submit a modified plan;
(c) Impose a plan of correction if a modified plan is not submitted in a timely
manner or if the modified plan is rejected by the Department;
(d) Issue a Notice of Intent to fine, suspend, revoke, nonrenew or deny if the party
has failed to comply with the imposed plan of correction, and provide the party with an
opportunity to request an administrative hearing. The Notice of Intent shall be effected
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by certified mail or by personal service, shall set forth the particular reasons for the
proposed action, and shall provide the party with 15 days in which to request a
hearing.” 210 ILCS 50/3.130 (West 1996).
¶8 Gallaher moved for summary judgment in the administrative proceedings, arguing that
license revocation was premature because the Department had not followed the plan of
correction procedure set out in section 3.130 and its companion Administrative Code, title 77,
section 515.160, which adds detail to the statute. 77 Ill. Adm. Code 515.160, amended at 20 Ill.
Reg. 11602 (eff. Apr. 15, 1997). Gallaher reiterated that she was also disputing the allegations
that she violated the suspension order. On September 8, 2010, the assistant chief administrative
law judge (ALJ) assigned to the matter recommended that the agency accept Gallaher’s
argument that section 515.160 was controlling and entitled her to a plan of correction, but also
conclude that Gallaher’s motion for summary judgment should be denied because there were
questions of fact as to whether Gallaher ignored the suspension order. The ALJ further
recommended that the Department’s notice of intent be dismissed “with leave to re-file under
77 Ill. Adm. Code 515.160.” On September 17, 2010, the director of the Department issued an
order adopting the ALJ’s recommended disposition of the action.
¶9 Also in 2010, the Illinois legislature amended section 3.130 of the EMS Act by changing
its title from “Violations; Plans of Correction” to the more specific, “Facility, system, and
equipment violations; Plans of Correction.” Pub. Act 96-1469 (eff. Jan. 1, 2011). Also, where
the prior version of the law stated, “Except for emergency suspension orders, or actions
initiated pursuant to Section 3.90(b)(10) of this Act [which concerns hospitals known as
trauma centers] prior to initiating an action” (210 ILCS 50/3.130 (West 1996)) the amended
version stated, “Except for emergency suspension orders, or actions initiated pursuant to
Sections 3.117(a), 3.117(b), and 3.90(b)(10) of this Act, prior to initiating an action ***.”
(Emphasis added.) 210 ILCS 50/3.130 (West 2010). The three statutory sections were
references to facilities known as “Primary Stroke Centers” (210 ILCS 50/3.117(a) (West
2010)), “Emergent Stroke Ready Hospitals” (210 ILCS 50/3.117(b) (West 2010)), and
“Trauma Centers” (210 ILCS 50/3.90 (West 2010)).
¶ 10 To implement this amendment, the Department amended the companion Administrative
Code section, title 77, section 515.160(a) (hereinafter EMS Code), “to clarify that plans of
correction apply only to violations of the Act regarding facilities, systems, and equipment.” 35
Ill. Reg. 15280, 15286.
¶ 11 Then, on March 30, 2011, the Department served Gallaher with a notice of violation and
intent to revoke her Lead Instructor’s approval in accordance with section 3.65(b)(7) of the
amended statute. 210 ILCS 50/3.65(b)(7) (West 2010). Like the 2008 notice of intent, the 2011
notice of intent alleged Gallaher taught at the high school without obtaining site codes and
Department approval as required by the EMS Code. The 2011 notice of intent also referred to
the nonstandard pediatric techniques that were taught under Gallaher’s supervision at the
Nauvoo EMS conference.
¶ 12 Gallaher moved to dismiss the 2011 proceedings, once again arguing that a plan of
correction was a prerequisite, but this time the argument was unsuccessful and the ALJ
indicated Gallaher needed to comply with the Department’s requests for discovery in the
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administrative action. Gallaher filed a motion to reconsider, which the ALJ denied, specifically
rejecting Gallaher’s contention that res judicata barred the Department from relitigating the
relevance of a plan of correction, and pointing out that (1) the ALJ in the 2008 matter clearly
recommended that the Department be given leave to refile, (2) the Director issued a final order
which accepted this recommendation, and (3) the Department had refiled. The ALJ also
specified that the Department’s discovery requests “were proper” and that the documents
should be produced.
¶ 13 At this juncture, Gallaher filed for declaratory and injunctive relief in the circuit court,
alleging that the administrative action should be enjoined for three reasons. In count I, she
contended the action was contrary to section 3.130 of the EMS Act. In count II, she alleged the
action was contrary to title 77, sections 515.160 and 515.700, of the EMS Code for instituting
revocation actions. 77 Ill. Adm. Code 515.160, amended at 20 Ill. Reg. 11602 (eff. Apr. 15,
1997); 77 Ill. Adm. Code 515.700 (2003). In count III, Gallaher alleged the Director’s “FINAL
ORDER” in 2010 triggered the doctrine of collateral estoppel and precluded any further action
by the Department. Gallaher also sought a declaratory judgment stating these three
conclusions. In addition to her complaint, Gallaher filed a motion for a preliminary injunction
to prohibit the Department from pursuing the 2011 administrative action or compelling her to
comply with its discovery requests.
¶ 14 The Department filed a combined response to Gallaher’s motion for injunctive relief and
motion to dismiss her complaint on grounds that she failed to exhaust her administrative
remedies and could not succeed on the merits of her pleading. The circuit court rejected the
argument for dismissal, finding that Gallaher was not required to exhaust her administrative
remedies before pursuing judicial relief because “agency expertise is not involved” and it
would be futile for her to exhaust her administrative remedies. The circuit court, however, also
denied Gallaher’s motion for an injunction, because Gallaher did not show that she would
suffer irreparable harm.
¶ 15 The circuit court also ruled in the Department’s favor when the parties filed cross-motions
for summary judgment on Gallaher’s complaint. With regard to count I, the court held that
section 3.130 of the EMS Act applies only to disciplinary actions against EMS systems and
facilities and for violations of equipment standards, and thus, section 3.130 does not require the
Department to implement a plan of correction against a lead instructor for his or her personal
violation of section 3.65. The court reached the same conclusions about title 77, section
515.160, of the companion Administrative Code, as it was pled in count II. As for count III, the
court found collateral estoppel was not triggered by the Director’s 2010 administrative order
dismissing the 2008 notice of intent with leave to refile, because the Director’s decision was
not a final judgment on the merits. This appeal followed.
¶ 16 Gallaher opens her appeal with her collateral estoppel and res judicata arguments
regarding the Director’s 2010 order. She next argues she was entitled to a plan of correction
either because section 3.130 of the EMS Act has always applied to individuals and its newly
revised title even refers to individuals because people are part of the EMS “system” (210 ILCS
50/3.130 (West 2010); Pub. Act 96-514, § 10 (eff. Jan. 1, 2010); Pub. Act 96-1469, § 5 (eff.
Jan. 1, 2011)), or because the revised version of title 77, section 515.160, of the EMS Code
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addresses disciplinary actions against individuals, where the body of the administrative code
refers to “System participants” (77 Ill. Adm. Code 515.160(e), amended at 20 Ill. Reg. 11602
(eff. Apr. 15, 1997); Pub. Act 96-1469 (eff. Jan. 1, 2011)). In the event we do not find these
first two arguments persuasive, Gallaher has a third: the Department was not entitled to
summary judgment where she argued in her cross-motion that charges against her lack merit.
Gallaher says that the circuit court should have addressed this additional argument, but for no
apparent reason never reached it. The Department responds that the court’s only error was
deciding Gallaher did not need to exhaust her administrative remedies.
¶ 17 We first address the Department’s exhaustion of remedies argument, because it could be
dispositive of the appeal. The Department contends we may affirm the summary judgment
ruling in its favor on grounds that Gallaher failed to exhaust her administrative remedies. We
know that the Department presented exhaustion and other arguments in its cross-motion for
summary judgment, but it was the other arguments that were persuasive to the circuit court.
The Department is relying on the principle that an appellee “may urge any point in support of
the judgment on appeal,” even if that point was not argued in the circuit court, so long as the
factual basis for that point was before the circuit court. (Internal quotation marks omitted.)
Beahringer v. Page, 204 Ill. 2d 363, 370, 789 N.E.2d 1216, 1222 (2003). Another relevant
principle is that we can affirm on any basis in the record, whether or not the trial court relied on
that basis or the court’s reasoning was correct. Board of Education of Marquardt School
District No. 15 v. Regional Board of School Trustees, 2012 IL App (2d) 110360, ¶ 16, 969
N.E.2d 431; Benson v. Stafford, 407 Ill. App. 3d 902, 912, 941 N.E.2d 386, 397 (2010). In
other words, our role is to review the court’s judgment, not its specific reasoning leading up to
that decision. Gallaher counters that she did not discuss exhaustion in her opening brief and
that we should disregard it because it appears in the Department’s response brief rather than
through a cross-appeal. She erroneously relies on Burrgess v. Industrial Comm’n, 169 Ill. App.
3d 670, 523 N.E.2d 1029 (1988), and Lagen v. Balcor Co., 274 Ill. App. 3d 11, 653 N.E.2d 968
(1995), which merely indicate that if an appellee wants an appellate court to review additional
decisions, the appellee must preserve those issues by filing its own appeal or cross-appeal. This
concept is irrelevant because the Department is not asking us to revisit the adverse decision on
its motion to dismiss; the Department is reiterating an argument, albeit an unsuccessful one,
found in its motion for summary judgment and urging us to reject Gallaher’s appeal on that
basis. Gallaher could have anticipated this argument and she should have addressed it in her
opening brief. Accordingly, we proceed to the merits of this exhaustion argument.
¶ 18 The general rule is that a party that disagrees with an agency’s administrative action cannot
seek judicial review, including through actions for injunctive and declaratory relief, without
first pursuing all of the administrative remedies available to him or her. Castaneda v. Illinois
Human Rights Comm’n, 132 Ill. 2d 304, 308, 547 N.E.2d 437, 439 (1989) (indicating
employment discrimination plaintiff must pursue rehearing from an en banc panel of the
Human Rights Commission in order to exhaust administrative remedies and obtain final order
reviewable in the circuit court); Dock Club, Inc. v. Illinois Liquor Control Comm’n, 83 Ill.
App. 3d 1034, 1037, 404 N.E.2d 1050, 1053 (1980) (determining Springfield tavern cited for
reducing drink prices for certain patrons on “ladies nights” could not maintain action for
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injunction and declaratory judgment due to “well-settled law in this State that where
administrative remedies are available, they must be exhausted before one can seek judicial
review”); Beahringer, 204 Ill. 2d 363, 789 N.E.2d 1216 (Statesville inmate whose paints and
other art materials were confiscated was expected to exhaust written grievance process prior to
filing complaint for injunctive and declaratory relief); Illinois Bell Telephone Co. v. Allphin,
60 Ill. 2d 350, 358, 326 N.E.2d 737, 742 (1975) (indicating the exhaustion doctrine is a basic
and long-standing principle of administrative law and is a counterpart to the procedural rule
that appellate review is generally limited to final judgments of the trial court).
“Exhaustion of administrative remedies serves two main purposes: first, it protects
administrative agency authority in that it gives an agency an opportunity to correct its
own mistakes *** and it discourages disregard of the agency’s procedures, and second,
it promotes efficiency in that claims generally can be resolved much more quickly and
economically in proceedings before an agency than in litigation in court. The doctrine
helps protect agency processes from impairment by avoidable interruptions *** and
conserves valuable judicial time by avoiding piecemeal appeals. The requirement that a
plaintiff exhaust administrative remedies as a prerequisite to filing suit allows the
administrative agency the opportunity to consider the facts of the case before it, use its
expertise, and allow the aggrieved party to obtain relief without the need for judicial
review. [Citation.]” 1 Ill. L. and Prac., Administrative Law and Procedures § 16
(2013).
¶ 19 We hold that Gallaher was not required to exhaust her administrative remedies because she
came within an exception by challenging the agency’s authority to proceed with the pending
license revocation action under a statute or administrative rule. When an agency’s statutory
authority to promulgate a rule and exercise jurisdiction is in issue, then no questions of fact are
involved and the agency’s expertise is not needed for statutory construction. Landfill, Inc. v.
Pollution Control Board, 74 Ill. 2d 541, 550, 387 N.E.2d 258, 261 (1978) (circuit court
properly exercised jurisdiction over question of Pollution Control Board’s authority to create
rule authorizing third parties to initiate permit-revocation proceedings); Emerald Casino, Inc.
v. Illinois Gaming Board, 346 Ill. App. 3d 18, 24, 803 N.E.2d 914, 919 (2003) (“All we have to
do in this appeal is read the statute for legislative intent. We know how to do that.”).
Determining the scope of any agency’s power and authority is a judicial function, rather than a
question for the agency to answer itself. Emerald Casino, 346 Ill. App. 3d 18, 803 N.E.2d 914
(casino not required to exhaust administrative remedies where it challenged whether statute
conveyed discretion or mandated that Gaming Board approve casino’s application for license
renewal and relocation); On-Line Financial Services, Inc. v. Department of Human Rights, 228
Ill. App. 3d 99, 103, 592 N.E.2d 509, 511 (1992) (employer not required to exhaust
administrative remedies where it challenged whether Department of Human Rights had
authority to file an employment discrimination complaint after the 300-day filing period
specified by statute); County of Knox ex rel. Masterson v. The Highlands, L.L.C., 188 Ill. 2d
546, 723 N.E.2d 256 (2000) (question of whether county zoning board of appeals had authority
to cancel construction permit for large scale hog confinement facility, where enabling
legislation expressly denied zoning authority over land used for agricultural purposes, came
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within exception to exhaustion doctrine); Office of the Lake County State’s Attorney v. Illinois
Human Rights Comm’n, 200 Ill. App. 3d 151, 156, 558 N.E.2d 668 (1990) (and cases cited
therein) (Lake County State’s Attorney was not required to first exhaust administrative
remedies before Illinois Human Rights Commission where he disputed its authority to hear
discrimination charge when he was not an “employer” or “person” and an assistant State’s
Attorney was not an “employee” within the meaning of the Illinois Human Rights Act). “An
administrative agency is different from a court because an agency only has the authorization
given to it by the legislature through the statutes.” Business & Professional People for the
Public Interest v. Illinois Commerce Comm’n, 136 Ill. 2d 192, 243, 555 N.E.2d 693, 716
(1989). An administrative agency has no general or common law powers. Alvarado v.
Industrial Comm’n, 216 Ill. 2d 547, 553, 837 N.E.2d 909, 914 (2005). Its powers are strictly
limited to the powers specified by the legislature. Alvarado, 216 Ill. 2d at 553, 837 N.E.2d 909.
Judicial determination of this question of law as to Gallaher will affect the jurisdiction of the
administrative agency in all cases. Accordingly, the circuit court had jurisdiction to hear counts
I and II of Gallaher’s action for injunctive and declaratory relief. Furthermore, the assertion of
the collateral estoppel doctrine in count III with regard to the first administrative proceedings
brought that count within an exception to the exhaustion doctrine, because it presented a legal
issue rather than a factual question, which is an issue within the scope of the court’s expertise,
rather than the Department’s. Village of Maywood Board of Fire & Police Commissioners v.
Department of Human Rights, 296 Ill. App. 3d 570, 578, 695 N.E.2d 873, 879 (1998)
(exhaustion not required where village board of fire and police sought declaratory judgment
that sovereign immunity deprived Department of Human Rights and Human Rights
Commission of authority to investigate allegation of employment discrimination and that res
judicata deprived agencies of authority to address a second action about the same issue).
Although the precedent Gallaher relies upon concerns res judicata, we hold that the concepts
of res judicata and collateral estoppel are sufficiently similar for the precedent to apply here.
¶ 20 For these reasons, we conclude that the Department’s exhaustion of remedies argument
does not dispose of the appeal and we proceed to Gallaher’s arguments, beginning with the
contention that the doctrines of res judicata or collateral estoppel barred the Department from
bringing a second administrative action which included the issue of whether the plan of
correction procedures in section 3.130 of the EMS Act and title 77, section 515.160, of the
companion Administrative Code are applicable to a lead instructor.
¶ 21 Res judicata, or claim preclusion, refers to the preclusive effect that a final judgment on the
merits has on the parties, in that it forecloses litigation of any claim that was, or could have
been, raised in an earlier suit between the parties or their privies. River Park, Inc. v. City of
Highland Park, 184 Ill. 2d 290, 302, 703 N.E.2d 883, 889 (1998); Rein v. David A. Noyes &
Co., 172 Ill. 2d 325, 334, 665 N.E.2d 1199, 1204 (1996). Thus, when the doctrine is applied, a
party is prevented from splitting his or her claims into multiple actions. Rein, 172 Ill. 2d at 339,
665 N.E.2d at 1206. Collateral estoppel, or issue preclusion, is much narrower in that it
prevents relitigation of issues of law or fact that have previously been litigated and decided in
an action that resulted in a final judgment on the merits involving the same parties or their
privies. Du Page Forklift Service, Inc. v. Material Handling Services, Inc., 195 Ill. 2d 71, 77,
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744 N.E.2d 845, 849 (2001) (rejecting argument that collateral estoppel should apply only to
fact determinations); Schratzmeier v. Mahoney, 246 Ill. App. 3d 871, 875, 617 N.E.2d 65, 66
(1993) (collateral estoppel precludes the relitigation of any matter); Dowrick v. Village of
Downers Grove, 362 Ill. App. 3d 512, 515-16, 840 N.E.2d 785, 789-90 (2005). In other words,
under collateral estoppel, the final judgment in the first suit acts as a bar only to the points or
questions that were actually litigated and determined, rather than to matters that might have
been litigated and determined but were not. LaSalle Bank National Ass’n v. Village of Bull
Valley, 355 Ill. App. 3d 629, 635, 826 N.E.2d 449, 456 (2005). The doctrines of res judicata
and collateral estoppel serve the same purposes of promoting judicial economy and preventing
repetitive litigation. Hayes v. State Teacher Certification Board, 359 Ill. App. 3d 1153, 1161,
835 N.E.2d 146, 154 (2005). Both doctrines are applicable to the decisions of administrative
agencies, as long as the agency was acting in an adjudicatory, judicial or quasi-judicial
capacity and the disputed issue is identical to the issue presented in the new claim.
Schratzmeier, 246 Ill. App. 3d at 875, 617 N.E.2d at 68.
¶ 22 We find that Gallaher waived any reliance on the doctrine of res judicata by failing to
plead it in her complaint. Rivera v. Arana, 322 Ill. App. 3d 641, 651-52, 749 N.E.2d 434, 443
(2001) (plaintiff’s failure to plead a legal issue results in waiver).
¶ 23 Regardless, we also find that neither res judicata nor collateral estoppel precludes the
second administrative action because the 2010 administrative order was not a final judgment
on the merits. The precedent cited above indicates that res judicata and collateral estoppel are
triggered only by final judgments on the merits. A final judgment is a determination of the
issues presented which ascertains and fixes absolutely and finally the rights of the parties.
Hernandez v. Pritikin, 2012 IL 113054, ¶ 47, 981 N.E.2d 981. However, here, the Director’s
2010 order incorporates the ALJ’s recommended findings in their entirety, including her
conclusions that (1) Gallaher’s motion for summary judgment on the Department’s action
should be denied and (2) the Department’s action should be dismissed but with “leave to
re-file.” The rejection of Gallaher’s motion for summary judgment plainly indicates that the
merits of the Department’s action remained unresolved. The Director’s 2010 order concluded
only a preliminary, procedural matter (Gallaher’s right to a plan of correction under the law
and administrative code sections then in effect) and left open the substantive issue of whether
Gallaher should lose her teaching credentials. The dismissal with leave to refile is an additional
indication that the 2010 ruling was not meant to conclude the ultimate question of whether
Gallaher’s teaching credentials should be revoked. See, e.g., Hernandez, 2012 IL 113054,
¶ 47, 981 N.E.2d 981 (dismissal with leave to file an amended complaint did not absolutely
and finally settle parties’ rights and so was not a final judgment supporting application of res
judicata); Domingo v. Guarino, 402 Ill. App. 3d 690, 932 N.E.2d 50 (2010) (two prior
dismissals did not trigger res judicata so as to bar refiling); Quintas v. Asset Management
Group, Inc., 395 Ill. App. 3d 324, 330, 917 N.E.2d 100, 104-05 (2009) (voluntary dismissal
with leave to refile did not preclude a second action). In other words, the Director’s 2010 order
did not absolutely and finally fix the rights of the parties with regard to the Department’s
claim. The 2010 order expresses the Director’s intention that the first administrative action was
not a final judgment on the merits of the disciplinary action and the Department would be able
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to proceed with its case at some point in the future. Thus, it was not a final judgment for
purposes of res judicata or collateral estoppel.
¶ 24 Gallaher emphasizes the 2010 order is captioned “FINAL ORDER,” and states “This is a
final administrative decision within the provisions of the Emergency Medical Services System
Act and the Administrative Review Law.” The title and phrase are boilerplate language from
section 3-103 of the Administrative Review Law (735 ILCS 5/3-103 (West 2008)) which is
used to notify parties that the limitations period to commence an administrative review action
has begun. Sherman West Court v. Arnold, 407 Ill. App. 3d 748, 944 N.E.2d 467 (2011)
(boilerplate language reciting that the agency’s Director adopted hearing officer’s findings and
the order was a final administrative decision within meaning of Nursing Home Care Act and
Administrative Review Law did not settle question of whether order was actually a final
administrative decision within meaning of those statutes, question was whether the order
terminated all proceedings before the administrative agency). This language does not resolve
whether an order is a final order for purposes of judicial review or purposes of res judicata or
collateral estoppel. Sherman West Court, 407 Ill. App. 3d 748, 944 N.E.2d 467. It is well
established that it is the substance of an order, not its form, that matters. Sherman West Court,
407 Ill. App. 3d 748, 944 N.E.2d 467 (citing, e.g., In re A Minor, 127 Ill. 2d 247, 260, 537
N.E.2d 292 (1989) (“An apple calling itself an orange remains an apple.”); see also generally
Marsh v. Evangelical Covenant Church, 138 Ill. 2d 458, 563 N.E.2d 459 (1990) (discussing
finality of orders for purposes of appeal)). The substance of this order indicates the Director
resolved only a preliminary, procedural matter and expected the parties to return to address the
merits once the Department was ready to refile. The substance of the order indicates the order
cannot be construed as a final judgment order for purposes of res judicata or collateral
estoppel. See Quintas, 395 Ill. App. 3d at 334, 917 N.E.2d at 104-05 (where trial judge clearly
and unmistakably granted leave to refile, plaintiff’s subsequent suit was not barred by res
judicata).
¶ 25 The collateral estoppel argument also fails because the order addressed a procedural
question, rather than disposing of a “separate branch” of the controversy between the parties.
In Wilson, for instance, the court held that an order which resolved whether doctors were actual
agents of a hospital in a medical negligence action did not resolve a separate branch of the
controversy between the parties. Wilson v. Edward Hospital, 2012 IL 112898, ¶¶ 19-26, 981
N.E.2d 971. The question of actual or apparent agency was merely part of the duty analysis in
a case where the plaintiffs sought to hold the hospital liable for the doctors’ alleged negligence,
and resolving this partial issue did not resolve the much larger questions of whether there was
a duty, breach of duty, proximate cause, and damages. Wilson, 2012 IL 112898, ¶ 24, 981
N.E.2d 971. Thus, Wilson stands for the proposition that a “separate branch” of the controversy
between the parties means a whole count or separate and distinct cause of action, not merely
some of the allegations.
¶ 26 Furthermore, even if we accepted Gallaher’s erroneous contention that the 2010 order
could be construed as a final judgment order for purposes of collateral estoppel because it
resolved a discrete issue (relevance of the plan of correction procedures), we would find no
collateral estoppel under the current facts because the doctrine extends only to the facts and
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conditions that existed when the original judgment order was entered. Consiglio v. Department
of Financial & Professional Regulation, 2013 IL App (1st) 121142, ¶ 44, 988 N.E.2d 1020.
The statute and the corresponding administrative code have been amended since 2008. When a
law is changed between two causes of action on the same subject matter, there is no danger of
repetitive litigation and the change in law renders the doctrines of res judicata or collateral
estoppel inapplicable. Consiglio, 2013 IL App (1st) 121142, ¶¶ 44-46, 988 N.E.2d 1020
(indicating there was no res judicata effect when Department’s original orders in license
revocation proceeding were based on law as it existed at the time; current revocation orders
under amended statute responded to a different issue). The 2010 order could not act as
collateral estoppel with respect to a statute it did not construe.
¶ 27 For these reasons, we reject Gallaher’s primary appellate argument that the doctrines of res
judicata or collateral estoppel barred the second administrative action.
¶ 28 Gallaher next argues that the language of section 3.130 required the Department to apply
its plan to correction procedures to lead instructors before initiating its disciplinary action
against her under section 3.65. She relies solely on section 3.130, rather than any language in
section 3.65. It is undisputed that section 3.65 expressly authorizes the Department to suspend
or revoke licensing approval of a lead instructor when that individual has failed to adhere to the
curriculum or protocol prescribed under the EMS Act or the administrative rules. 210 ILCS
50/3.65(b) (West 2010). Although section 3.65(b) requires “an opportunity for a hearing,” it
does not refer to a plan of correction or to section 3.130. See 210 ILCS 50/3.65(b) (West 2010).
¶ 29 Questions of statutory construction as well as orders granting summary judgment are
reviewed de novo. Stern v. Wheaton-Warrenville Community Unit School District 200, 233 Ill.
2d 396, 404, 910 N.E.2d 85, 91 (2009). Our role in interpreting a statute is to ascertain and give
effect to the intent of the legislature. Andrews v. Kowa Printing Corp., 217 Ill. 2d 101, 106, 838
N.E.2d 894, 898 (2005). The language of the statute, given its plain and ordinary meaning, is
considered the best indicator of the legislature’s intent. Andrews, 217 Ill. 2d at 106, 838 N.E.2d
at 898. We are to construe the statute as a whole, considering its words and phrases not in
isolation but in light of other relevant provisions, and keeping in mind the subject the statute
addresses and the legislature’s apparent objective in enacting it. Andrews, 217 Ill. 2d at 106,
838 N.E.2d at 898.
¶ 30 Applying these principles, we begin with the title of section 3.130, which, as of January
2011, excludes individuals by specifying that it concerns “[f]acility, system, and equipment
violations” rather than “violations” in general. 210 ILCS 50/3.130 (West 2010); Pub. Act
96-1469 (eff. Jan. 1, 2011). In addition, the opening sentence now refers to sections 3.117(a),
3.117(b) and 3.90(b)(10) of the EMS Act, which concern types of facilities within the EMS
system known as “Primary Stroke Centers,” “Emergent Stroke Ready Hospitals,” and
“Trauma Centers,” rather than personnel. The remaining sentences and paragraphs of section
3.130 do not refer to any entity or individual but provide for a notice of violation to be
answered by a plan of correction and a notice of intent to fine, revoke, and so forth, to be
answered by a plan of correction. Then, looking at the overall organization of the EMS Act,
which consists of 66 substantive sections, we see that section 3.130 is neighbored by sections
that define and set standards for vehicle service providers, such as ambulances and other
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specialized medical vehicles, and other sections that define and set standards for facilities to
meet in order to be designated as primary stroke centers, emergent stroke ready hospitals, and
trauma centers. In contrast, section 3.65, which is the section specific to Lead Instructors, is
neighbored by sections about other individuals, such as first responders, emergency medical
dispatchers, trauma nurses, and emergency communications nurses. Thus, both the express
content and the context of section 3.130 within the overall EMS Act indicate that section 3.130
concerns facility, system, and equipment issues rather than individual medical personnel
problems. We read section 3.130 to unambiguously apply the plan of correction procedure to
EMS entities and equipment only and not to EMS personnel.
¶ 31 We are not persuaded by Gallaher’s contention that this construction places undue
emphasis on the statute’s title. For one thing, we considered more than just the title of section
3.130 before reaching this conclusion, and for another, we must give some effect to all the
words the legislature has used. Gallaher relies on Brotherhood of R.R. Trainmen v. Baltimore
& O.R. Co., 331 U.S. 519, 528-29 (1947), for the proposition that “headings and titles are not
meant to take the place of the detailed provisions of the text” and “the heading of a section
cannot limit the plain meaning of the text.” Also, “[w]here the text is complicated and prolific,
headings and titles can do more than indicate the provisions in a most general manner; to
attempt to refer to each specific provision would often be ungainly as well as useless.”
Brotherhood, 331 U.S. at 528. Gallaher also quotes the statement in Illinois Bell Telephone Co.
v. Illinois Commerce Comm’n, 362 Ill. App. 3d 652, 661, 840 N.E.2d 704, 713 (2005), that
headings are only “organizational devices” and “case law warns against putting undue
emphasis on [them].” We do not consider this principle helpful when construing a statute that
is short and uncomplicated and its body, title, and context within the complete EMS Act all
consistently indicate that the legislature intended to limit the statute’s application to entities
and equipment. We have not used the title to disregard or override any statutory language. Our
analysis is consistent with the indications in Brotherhood and Illinois Bell that the legislature’s
plain words and context in which they are used are key to the proper interpretation of an
unambiguous statute. Brotherhood, 331 U.S. at 527-29 (considering heading, paragraph, and
surrounding paragraphs to determine proper interpretation of paragraph); Illinois Bell, 362 Ill.
App. 3d at 659-60, 840 N.E.2d at 711 (“In statutes and other forms of discourse, people rely on
context to tacitly limit the scope of statements that, taken in isolation, would be too broad.”).
Neither case instructs us to disregard the title chosen by the legislature. Instead, Brotherhood
and Illinois Bell indicate that giving inordinate emphasis to a title can distort the intended
meaning of the statute. On the other hand, we cannot disregard a title and render some of the
legislature’s words meaningless or superfluous. Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189, 561
N.E.2d 656, 661 (1990) (ascertaining the meaning of a statute requires reading it as a whole,
with all relevant parts considered, and no word or phrase rendered superfluous or
meaningless); Picerno v. 1400 Museum Park Condominium Ass’n, 2011 IL App (1st) 103505,
¶ 23, 959 N.E.2d 1268 (statute’s words, clauses, and sentences are given some reasonable
meaning and, to the extent possible, no statutory language is rendered superfluous or
meaningless). Our role is to give effect to the legislature’s enactment. What we have done here
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is read all parts of the statute as a harmonious whole and reached the unavoidable conclusion
that section 3.130 is not relevant to individual lead instructors.
¶ 32 We also reject Gallaher’s contention that section 3.130 applies to her because she is part of
the EMS system. In support she relies on the EMS Act’s definition of an “EMS System” as “an
organization of hospitals, vehicle service providers and personnel approved by the
Department.” (Emphasis added.) 210 ILCS 50/3.20(a) (West 2010). She contends that she is a
member of the EMS System personnel and thus encompassed by the statute now entitled,
“Facility, system, and equipment violations; Plans of Correction.” 210 ILCS 5/3.130 (West
2010). Gallaher misapplies the definition. Gallaher is an individual rather than “an
organization of hospitals, vehicles and personnel.” Gallaher is not an “EMS System.”
Essentially she is proposing that the title of section 3.130 should be construed as “Facility,
[hospitals, vehicles and personnel] and equipment violations, Plans of Correction,” which is
nonsensical and violates the principle that a statute should not be construed so that it results in
absurdity. Illinois Bell, 362 Ill. App. 3d at 661, 840 N.E.2d at 712. We construe section 3.20 to
be a general definition and section 3.130 to be the more specific and conclude that the more
specific provision controls the scope of the plan of correction procedure. Illinois Bell, 362 Ill.
App. 3d at 661, 830 N.E.2d at 713.
¶ 33 Finally, we decline to reach Gallaher’s contentions, brought for the first time on appeal,
that (1) the law is impermissibly retroactive (see Mohammad v. Department of Financial &
Professional Regulation, 2013 IL App (1st) 122151, ¶ 14, 993 N.E.2d 90) and (2) her alleged
conduct did not violate the statutes and administrative codes that the Department cited in its
2011 notice of intent. Rivera, 322 Ill. App. 3d at 651-52, 749 N.E.2d at 443 (plaintiff’s failure
to plead a legal issue results in waiver).
¶ 34 Based on our de novo review, we affirm the circuit court’s summary judgment ruling in
favor of the administrative agency and against Gallaher.
¶ 35 Affirmed.
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