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October 8, 1985


The opinion of the court was delivered by: Getzendanner, District Judge:


This action is brought under the Civil Rights Act of 1871, 42 U.S.C. § 1983. Plaintiffs Stewart Lemon and William Ward sue on their own behalf and on behalf of a class of individuals similarly situated, charging that certain provisions of the Illinois Human Rights Act ("IHRA"), Ill.Rev.Stat. ch. 68, ¶¶ 1-101 to 9-102 (1983), are unconstitutional. Defendant Joyce Tucker, Director of the Illinois Department of Human Rights ("Department") moves to dismiss this action for failure to state a claim upon which relief can be granted. In an earlier motion to dismiss this action on other grounds, the then codefendant Department was dismissed on the ground of sovereign immunity. See Memorandum Opinion and Order from this court dated November 19, 1984. For the reasons stated below, the motion to dismiss for failure to state a claim is denied in part and granted in part.

The IHRA creates a state cause of action for various "civil rights violations" amounting to discrimination based on race, sex, handicap, religion, age, unfavorable military discharge, marital status, and other factors. Ill.Rev.Stat. ch. 68, ¶ 1-103(Q). Plaintiffs claim that the procedures used to determine the validity of discrimination violate plaintiffs' fourteenth amendment due process and equal protection rights.

Under the IHRA, a person who believes that she or he is the victim of a civil rights violation may file a charge with the Department within 180 days of the alleged violation. ¶ 7-102(A)(1). When filing a charge, the complainant must state with particularity the time, place, event and other facts concerning the occurrence of the alleged discrimination. ¶ 7-102(A)(2). Once a charge has been filed, the Department is then required to serve the responding party and commence a "full investigation" of the allegations set forth in the charge. ¶ 7-102(B)-(C). During this investigation, the Department has the authority, but not the duty, to compel the production of documents and the testimony of witnesses. ¶ 7-102(C)(2). The Department also has the discretion to convene a fact-finding conference. ¶ 7-102(C)(3). Upon conclusion of the investigation, the Department must prepare a report which the director of the Department reviews to determine whether there is substantial evidence that a civil rights violation has occurred. ¶ 7-102(D)(1)-(2). If such evidence is determined to exist, the director must appoint a Department attorney to endeavor to eliminate the effect of the alleged violation through "conciliation." ¶ 7-102(D)(2)(b). If conciliation efforts fail, the Department must file a formal complaint with the Illinois Human Rights Commission ("Commission"), ¶ 7-102(F), and a full adversarial hearing on the merits of the complaint follows. ¶ 8-106. Upon a finding of a civil rights violation, the Commission is authorized to provide a broad panoply of remedies, including actual damages, cease and desist orders, reinstatement, and attorneys' fees. ¶ 8-108.

If the director determines, after the original investigation, that there is no substantial evidence to support the charge of a civil rights violation, the charge is dismissed. ¶ 7-102(D)(2)(a). The complainant may, however, seek review of the dismissal by the Commission. Id. When reviewing a dismissal, the Commission may, but is not required to, consider the Department's report, any argument and supplemental evidence timely submitted, and the results of any additional investigation conducted by the Department in response to the request for review. ¶ 8-103(B). Also, in its discretion, the Commission may designate a hearing officer to conduct a hearing into the "factual basis of the matter at issue." Id. Finally, if the Commission upholds the Department's dismissal, the complainant may seek judicial review. ¶ 8-111(A)(1). The court must uphold the Commission's order unless it is "contrary to the manifest weight of the evidence" in the record ¶ 8-111(A)(2). The court does not make a de novo determination of whether substantial evidence itself exists.

Hence, the victim of a civil rights violation has the right to file a charge with a state agency, assert facts that make out a case for discrimination, and have that charge, if supported by substantial evidence, pursued through conciliation and, if necessary, formal hearing and administrative relief. However, the complainant does not have the right to require the Department, when investigating a charge for substantial evidence, to exercise its compulsory process or fact-finding powers, or even, it would appear, to listen to the complainant's proffered reasons for why substantial evidence exists. Similarly, the complainant does not have the right to require the Commission, on review of a finding of no substantial evidence, to hold a fact-finding hearing on the charge, or even to consider the Department's report, the complainant's arguments, or additional evidence or investigative results. Finally, there is no de novo judicial review of the evidence in the record. In short, a complainant has the right to file and describe a civil rights charge and have the IHRA machinery arbitrate and if necessary adjudicate the charge if it is supported by substantial evidence. But the complainant has no right to have the Department or Commission consider any evidence or reasons she or he offers to support a finding of substantial evidence. And though the reviewing court is presumably required to consider any evidence entered into the record, the court does not review the record to determine if there is substantial evidence. Rather, the court is permitted to review the record only to determine if the finding of no substantial evidence is contrary to the manifest weight of the evidence.

Plaintiffs' primary constitutional argument is that the procedures used to determine whether the Department and Commission will pursue a charge of a civil rights violation through conciliation and adjudication violate due process. Plaintiffs argue that the right to use the IHRA administrative and adjudicatory machinery is a property right; as a property right, it may not be terminated without due process of law. Plaintiffs do not dispute the constitutional validity of the substantive standard for terminating one's IHRA rights — i.e., the lack of substantial evidence. Instead, plaintiffs contend that the procedures for determining the existence of substantial evidence fall below the minimum required by due process.

The Due Process Claim

It is a familiar precept of constitutional law that a state may not deprive a person of property without due process of law. In order for plaintiffs to prevail in their claim that the procedures of the IHRA deprive them of property without due process, they must establish that the IHRA gives them something cognizable as property, and that the procedure which deprives them of that property is not due process.

The United States Supreme Court, in Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), held that a claim under the Illinois Fair Employment Practices Act ("FEPA") — the predecessor to the IHRA and the substantive rights of which are now incorporated in IHRA — is a property right. The court observed that "[t]he hallmark of property . . . is an individual entitlement grounded in state law, which cannot be removed except `for cause.'" 455 U.S. at 431, 102 S.Ct. at 1155. A claim under FEPA, and now under IHRA, cannot be dismissed by the Department unless there is no substantial evidence to support it. This, the Court held, is in essence a "for cause" standard. Id. Thus, since both FEPA and IHRA give a victim of discrimination the right to use administrative and adjudicative procedures absent a lack of substantial evidence to support the charge, both acts give Illinois residents a property right in her or his charge of discrimination. See id.

Once it has been determined, as it has, that plaintiffs possess a property right, the inquiry shifts to "what process is due" the possessor of that right. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). The starting point for this inquiry is the constitutional benchmark that a deprivation of property must "be preceded by notice and opportunity for hearing appropriate to the nature of the case." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865 (1950). Here, because there is obviously no question that the plaintiffs have notice of their own charges, the question becomes whether the IHRA procedures for determining the substantiality of evidence (Department investigation, Commission review, and judicial review) provide plaintiffs with the process that is their due before their charges are dismissed with finality.

The governing approach for determining what process is due was laid down by the Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). The nature of the hearing required prior to the termination of the property right "will depend on the appropriate accommodation of the competing interests involved." Goss v. Lopez, 419 U.S. 565, 579, 95 S.Ct. 729, 738, 42 L.Ed.2d 725 (1975):

  [I]dentification of the specific dictates of due process
  generally requires consideration of three distinct factors:
  First, the private interest that will be affected by the
  official action; second, the risk of an erroneous deprivation
  of such interest through the procedures used, and the probable
  value, if any, of additional or substitute procedural
  safeguards; and finally, the Government's interest, including
  the function involved and the fiscal and administrative burdens
  that the additional or substitute procedural requirement would

Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 902-03, 47 L.Ed.2d 18 (1976). See also Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) (random termination of property interest in using adjudicatory procedures violated procedural due process); Smith v. Organization of Foster Families, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977) (informal procedures before a foster child may be removed from foster home satisfies due process, assuming a liberty interest was involved); Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978) (before municipal utility may cut off services to customer, it must afford customer opportunity to meet with an employee authorized to settle billing disputes).

A careful balancing of these interests leads this court to conclude that the minimal nature of procedures guaranteed to complainants for investigating charges for substantial evidence and review of dismissals under the IHRA is sufficiently offensive to due process to survive defendant's motion to dismiss. First, the interests of the victim of a civil rights violation are substantial. They are based on the victim's interest in the "property rights" provided by the IHRA — conciliation efforts, followed if necessary by adjudication and relief — rights which remain vested after the filing of a charge unless there is a determination of no substantial evidence. The rights of conciliation and hearing both offer the complainant substantial possibilities that the victim's discrimination will be redressed with damages, reinstatement, or some other form of relief.

The interests of the government are also important. The government is interested in the expeditious dismissal of nonmeritorious claims not only so as to reduce its own administrative costs but also to reduce the burden on innocent respondents. An administrative investigation which can quickly clear a respondent of an unmeritorious charge will well serve that respondent's, and therefore the government's, interests. The government is also interested in expeditious dismissals of non-meritorious claims so as to assure that meritorious claims are attentively and purposefully processed thereby vindicating one of the purposes of the IHRA.

It has already been observed that the IHRA investigative procedures do not, as written, guarantee a complainant normal adjudicative rights. Although the Department has the power to use compulsory process, compel production of documents and employ a fact-finding conference, it need not do so. Ill.Rev.Stat. ch. 68, ΒΆ 7-102(C)(2), Illinois Department of Human Rights (IDHR) Rules and Regulations 4.3 (1983). The Department has plenary control over ...

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