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January 29, 1999


The opinion of the court was delivered by: Shadur, Senior District Judge.


This class action (the plaintiff class having been certified on November 5, 1998) arises from recent changes in the procedures used by the Illinois Department of Human Rights ("Department") to evaluate discrimination claims. Class representatives Ricky Cooper, Anna Marie Klups and Chitunda Tillman (because their claims are identical except in one immaterial respect, for simplicity this opinion will most frequently speak of the entire class by personifying it only in terms of "Cooper") assert 42 U.S.C. § 1983 ("Section 1983") claims that four of those procedural changes result in an administrative process that violates Cooper's (meaning the class') Fourteenth Amendment procedural due process rights. At the threshold Cooper seeks entry of a preliminary injunction preventing Department Director Rose Mary Bombela ("Bombela") from continuing to rely on three of those procedural changes. For the reasons set forth in this memorandum opinion and order, that motion is granted to the extent stated in the Conclusion section.*fn1

Department's Procedures

Under the Illinois Human Rights Act ("Act," 775 ILCS 5/1 to 5/10*fn2) any employee who believes that he or she has been discriminated against in his or her employment is provided with an administrative process to enforce the right to be free from such discrimination (Baker v. Miller, 159 Ill.2d 249, 266, 201 Ill.Dec. 119, 636 N.E.2d 551, 559 (1994)). First the complainant files a Charge of Discrimination with Department (Act § 7A-102(A)(1)). Once that charge has been filed, Department must serve the employer and commence a full investigation of the allegations (Act § 7A-102(B) and (C)). Although the investigation is informal, the investigator has the right to subpoena witnesses and documents (Act § 7A-102(C)(2)).

As part of its investigation, Department generally convenes a fact-finding conference to obtain evidence, identify the issues in dispute, ascertain the positions of the parties and explore the possibility of a negotiated settlement (Act § 7A-102(C)(4); 56 Ill.Admin.Code § 2520.440). That conference may not be recorded (56 Ill.Admin.Code § 2520.440(c)), but the parties and the investigator are permitted to take notes. In addition, the investigator may choose to exclude witnesses. While the parties do not question witnesses directly, they may ask the investigator to ask specific questions (id.).

Once the investigation is complete, the investigator submits a written report to Department's Director (Act § 7A-102(D)). Based on that report, the Director determines whether there is "substantial evidence" that a civil rights violation has been committed (Act § 7A-102(D)(2)):

  Substantial evidence is evidence which a
  reasonable mind accepts as sufficient to support a
  particular conclusion and which consists of more
  than a mere scintilla but may be somewhat less
  than a preponderance.

Effective January 1, 1996 the statute was amended to allow the Director to take credibility into account in assessing whether substantial evidence exists (id.; Webb v. Lustig, 298 Ill. App.3d 695, 702, 233 Ill.Dec. 119, 700 N.E.2d 220, 224 (4th Dist. 1998)).*fn3

If the Director finds substantial evidence of a violation, Department attempts to conciliate the charge. If that attempt does not succeed, a Department attorney drafts and files a formal complaint with the Illinois Human Rights Commission ("Commission"), where the claim is adjudicated before an Administrative Law Judge in a formal hearing with counsel representing each party and with the right to engage in motion practice, discovery and cross-examination.

If the Director finds no substantial evidence and therefore recommends dismissal of the charge, the complainant may file a Request for Review (Act § 7-101.1). For charges filed before January 1, 1996 that Request for Review has been decided by the Commission (Act § 8-103), while for charges filed thereafter the Request is decided by Department's Chief Legal Counsel (Act § 7-101.1).

Until December 29, 1997 Department rules allowed complainants preparing Requests for Review to inspect materials obtained by Department during its investigation (2 Ill.Admin.Code § 926.210 (1995); Complaint and Amended Answer ¶ 46). As of that date, however, a new regulation went into effect barring access to all investigative materials except the formal report submitted to the Director until after the case is completely disposed of, such as by a final dismissal after a Request for Review (2 Ill.Adm.Code § 926.210 (1997)).*fn4 Such decisions are reviewable in the state Appellate Courts (Act § 8-111).

Cooper seeks to enjoin Department from implementing three changes in its process: (1) allowing its investigators to make credibility determinations (with claimants having no right to confront and cross-examine adverse witnesses in the investigator's proceedings); and then, at the Request for Review stage, (2) denying claimants access to investigative files and (3) denying claimants access to witness statements. In the interim, the current preliminary injunction motion urges this Court to require Department to return to its prior procedures until the constitutionality of the new policies can be fully examined.

Younger Abstention

Bombela first responds to Cooper's preliminary injunction motion by urging abstention from assessing the motion on the merits. For that purpose Bombela looks to the principles set forth in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), initially in the context of pending state court criminal proceedings. Post-Younger the Supreme Court has extended its abstention doctrine to both state civil proceedings (see, e.g., Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975)) and state administrative proceedings that are judicial in nature (see, e.g., Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982)).*fn5 But it has not done so without limits, and this case falls outside of the boundaries of appropriate application of the Younger doctrine.

Younger abstention is grounded in the premise that federal courts should not interfere with a state's effort to enforce its own laws in an ongoing state proceeding in which the state defendant can fully and fairly litigate the issue it would instead attempt to raise in federal court. Typically Younger abstention applies when a state defendant who could have raised a federal defense to a state judicial proceeding instead files suit in federal court against the state actor pursuing the state enforcement action. Hence the parties in the state action are in an inverse relationship to the parties in the federal action: Whoever is the state defendant becomes the federal plaintiff, and whoever is the state plaintiff becomes the federal defendant. That is not this case, and therein lies the problem with Bombela's argument.*fn6

In an earlier opinion in Lemon v. Tucker, 664 F. Supp. 1143, 1147 (N.D.Ill. 1987), a case very similar to this one also involving a federal court challenge to the constitutionality of previous Department procedures, then Judge Susan Getzendanner provided an extended and insightful — and this Court ...

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