the next case on the call the docket is please we see case number one one three seven zero six jackie rodriguez heavily versus department financial and professional regulation appellate  morning honors so may please the court i'm system attorney general karl lots of hearing for the department of financial and professional regulation your honour's for thirty years section ten fifty five c of the administrative procedure act has been understood by parties in courts alike to grant authority to a court that invalidates an administrative rule to shift litigation expenses from the party on to the state this is litigation expenses or has had an administrative rule invalidated the language of section ten fifty five c provides in very short in very brief way in any case in which a party has had administr e rule invalidated for any reason but it continues the court shall award the party bringing about action the reasonable expenses of the litigation including reasonable attorneys fees it's my suggestions to the court that refer to the matter that's before the court that's handling the administrative or review action or the other case involving the agency and the other reading of that statute causes of dissonance with the doctrines of case a case is any action suit or controversy what was the case in this situation the case in the situation was the case that was brought in the circuit court before judge honest broker in two thousand and five just honest broker entered a final order in october of two thousand and five declaring that one of the administrative rules at issue was invalid and no one did anything for thirty days and the final judgment then became subject to not being challenged  in the matter again it was not subject to expansion or contraction the pardon was unhappy with that judgement and try to bring up fourteen zero one claim to try to get some relief from that judgment and in the appellate court found out the hard way that it's not possible to challenge a circuit court action after thirty days passes from the entry of a final judgment that was the end of the case that should have been the end of the case for purposes of in a world of attorney's fees as well we're going to locations was and one for two thousand is the court that declares and the ministry of room valid now of course the appeals court and this court has the ability to remain the case with directions to a trial court and that's the logical thing to do when attorneys fees are an issue because the court that has handled the the bulk of the cases the court that's best suited to decide what are reasonable attorney's fees and so i would suggest as happened in the du page case that when the appeals or or has happened in several cases actually when an appeals court declares a rule invalid remey and is the best course of action into page that wasn't possible because that was a direct administrative review there was no trial court below to handle the attorneys fees issue and so the appeals court actually was the one that awarded fees this court didn't last that proceeding but two page did come up and that proceeding was noted by the court in its decision so it's my view that that's that what happened to paige and what's happened in the other cases that have been decided by the this court involving ten fifty c ten fifty five c are consistent with that but court that declares the will invalid is the court that has authority to award or shift litigation expens opponent argues and successfully argued in the appellate court that a contrary interpretation of the statute is essential because when the court as happened in this case the clear is a rule invalid in a final order then the party who  should have the benefit of the statute is stuck but he's not stuck because if a court is going to invalidate administrative rule which typically that should happen because the party has asked the court to invalidate the administrative role and so the party that has asked the court to invalidate the administrative role should plead the claim for attorney's fees or ship the litigation expenses in the complaint as they have to know you can wait there's an opportunity even after the court and or spinal judgement to ask the court to shift litigation expenses in the thirty days that follow the entry of final judgment and it's our view that when judge donner's broker entered this order this written order the plaintiff could come back to the court that had invalidated the administrative role in that order and asked to shift the litigation expenses but they didn't and at that point their right to seek fees lapses and should be found to be forfeited any other rule subjects the state to what i guess in insurance and industry is called a long tail the state has no idea what's out there as far as what's been subject to shift at litigation expenses and in fact my point takes the position that they can bring this claim for  that that language should be construed but it should be construed to limit the cause of action should limit the claim for ship that litigation expenses to the cause of action right vote case in which the claim but i think it's far too complicated that this case really ought to turn on this language which in my view is is very clear the court the party action the reasonable expenses the general assembly is thinking about the matter  before the court that decides that it in the state of rules invalid and the fact that this issue hasn't come up for thirty years i think supports our idea that this is really plain and and let it consider stand this in this case my opponents overlooked this the circuit court overlooked this when the it in your argument it's not a separate cause of action but it is a separate claim it is a separate claim if it were made in the trial language and come up to the appeals court that way if they could get three zero for a language i don't know why judge would grant three or four a language actually unless they do that it was a complicated case you can see it maybe but it would deprive the of the final judgment of appeal ability and the judge would have to then consider the question that logic that's a very logical interpretation of the statute because it puts the claim for shifted litigation expenses in front of the judge who who knows what expenses are my opponent's argument that he can bring this claim at any time indefinitely in the future as long as in the same county i guess or in the same circuit court as the original action means that we'll have different judges looking at litigation perhaps as in this case years later so my point wants to file a petition with a with which with judge taylor i suppose that would be you know would a geisha expenses that go back years when judge taylor knows nothing about whether those those fees were reasonably requested or not met mr leeds and here this was the i'm sorry excuse me i'm sorry now this dispute over the rule arises out of a challenge on me rodriguez to a project the first rodriguez circuit court case saying the rule that was invalid did that not deal with the issue no if it dealt with the question of whether hearsay evidence could be presented to the agency at the administer at the administrative hearing and judged on its burger in rodriguez two said that to the extent that the rule allowed for hearsay to be used by the agency that was void what about rodriguez one was or was here dispute over that as your question suggests there's been a lot of different cases here there's the agency action there's rodriguez one involving discovery at the agency level there was rodriguez to involving hearsay and the type of hearing they were entitled to there was a fourteen zero one action which i think is another case and then there's this rodriguez three action which was filed in two thousand and eight years later seen here would help me out on this in two thousand and five because you referenced this in your opening statement about the filing of a complaint was the issue of the conflict between the agency rule and the civil administrator code was that raised in that two thousand and five yes your and i believe that was and was that in the context of administrative review action it was court because the department pressure gauge vokoun settled with that with the other side and so we've never had a review of a final agency action but i guess what i'm getting to is if it had evolved and ended up in an administrative review action where the individual files a complaint seeking review under the a are a what would prevent the individual from raising that claim of an invalid rule and and subsequently the attorney fees claim nothing and i think that's exactly what the general assembly had in mind here they didn't really have happen mind was becoming more and more common it seems to me for parties to run to the circuit court and seek declaratory relief before the agency acts with the administrative review l contemplates is that they'll be sort of an orderly action at the agency level and then after there's a final agency decision the case will come into the circuit court and then the circuit court level that's the case that the general assembly has in mind then in that case the court may say you know this even validated administrative rule in my mind i think it's only fair that the state pay for your litigation expenses this sort of multiple litigation deck actions is not with the general assembly had in mind but i'm stuck with the language of the statute that they've given me it says in any case in which an administrative action is invalid it i wasn't going to argue to the court that that can include deck actions because that seemed to be a stretch in the courts decided cases now under ten thirty five c that would be against that so we're stuck with that id to grant fees under section ten fifty five c and how they can extend to any sort of claim that is made during the course of the action and i think it's possible to read it incorrectly as my opponents seem to have which is that anything we do with regard to anything the agency does with regard to us we can get our our ship at league ation expenses and that logic is not consistent with what was actually said in citizens organizing project but it also i s inconsistent with the statutory language so again it's my position that the court should come back to that statutory language read that language in any case case in which and ask the question in which case did he have an administrative role and validate it that's where he can seek its fees and then there's a case that this court decided carson where the court talks about how if you don't bring this to the if this hasn't been all teed up in the lower courts it can all be brought up in the in the in the higher courts later you can't say it kills court oh by the way i were if a court were to rule and then later you can go back and say i read that ruling as having invalidated administrative rule please give me my fees that's not consistent with the language i think if you're going to invalidate administrative rule at the in the case that you have you need to ask the court who is deciding that case please ship litigation expenses and then it's appropriate the have a whole court relate except primarily  doctrine and so if a court says that it's going to withhold jurisdiction then it's inconsistent with equity to tell parties later that it's improper for them to come back and that's how we distinguish libertyville and  about it and then years later the plaintiffs showed up in the circuit court and asked for fees and proceeded to get them and that does seem like it's this case but it's not this case because in honors the state essentially didn't with my prior bosses i think they probably looked at this and said let's talk about how much and not whether so that's highly distinguished all right if you aren't is not distinguished that way i would simply say it's wrong it's not consistent with the language of the act last opponent makes the argument that pursuant to section two seven zero one c of the declaratory judgment happens the circuit court i guess his argument is always retains jurisdiction to go back and modify the deck judgment that's something that i would court not to buy into first of all under the language that i have cited to the court they are the specific statute controls the general and in this case we have a specific statute that says this court shall do this them to come back later and ask for different compulsorily and that's a reasonable limiting principle that we would respond to their argument it's the one that i would urge the court to adopt if it gets there i don't think you have to get there because like i said i think the statute takes that question away but they did ask for coercive relief in rodrigues two they asked for an injunction they didn't get it but they asked for it and raced to kind of bars claims similar to that they could have brought this so my argument is that that the statute controls but alternatively and consistent with a priority way chicago controls because this is an argument that should have could have been brought in the prior action and in the case that was before judge don one of the basic controversies here is what is the case and i would refer this court to the decision in art where the court spent  o three pages discussing what a case is and how section ten fifty five see extends and that the in our there was a prosecution brought by the department and then there were subsequent claims and the  that in a manner similar to other fee shifting statutes they at the case would apply to all claims that are brought as part of the action that stem from a common core effects in that particular case the department prosecution this court in citizens three years later expressly adopted that reasoning from mark in the citizens opinion and in fact held indicates that he had a case can extend beyond the invalidation proceeding now i would i would take the position as we did in our brief that there was one case and there were five claims there were actually a few additional claims but they were not mentioned because they were not pertinent here and i would say dead in this situation i would in the alledge eyes a case to a war and a claim to a battle and in this particular case the department declared war on dr rodriguez as license and then there were a number of variables and then after the fourth day all the department surrendered and dr rodriguez then sought war reparations they did not extend just to the battle that the department says that they lost it extended to all to everything that led to this entire controversy stemming from the department's an initial prosecution so i would say that based  on the precedents of based on the language and based on the language and citizens and those considered the intent of the legislature that a case extends beyond that moreover there  claims in a published opinion stated we find no statute of limitations pertaining to ten fifty five c but we determine that we do not have jurisdiction to hear this plane but certainly there must be somebody who ha to hear this claim and they essentially directed the parties to find a court that he had jurisdiction to entertain the claim and the parties went back to the circuit court and brought it in the circuit court i would mention  had to always keep the same judge when one brought it brought a case there would be great problems because i can tell you that did just in bringing rodriguez three judge judge taylor was our third judge on the case because judge gardner retired and then judge white took over the case and then we had judge taylor and it's my understanding now that judge taylor is transferred to another section the department claimed in the brief that had we brought it within thirty days before judge donner's berger  retired he certainly was not going to grant us fees or entertain a motion for fees if he had done his they cater of the rules by the time we came back down judged on his burger was no longer on the bench  knows well i don't know that i don't know that it doesn't have a statute of limitations if it's construed to be an independent cause of action there is a there is a statue of limitations that pertains to contracts and also other other city other civil actions not otherwise provided for and it's a five year statute of limitations and in the past this court and the appellate courts have on many cases applied t five year statute of limitations to courses of action that where the legislature is not placed a specific limit within the statute if this court were to were to hold that then particular statute of limitations applied here w statue of limitations would have been told and then any case the department never raised the statue of limitations the level of the trial court so that they would have waive that so yes that there might may well be a statute of limitations of five years  this court were to hold that the statue of limitations that applies to the civil actions not otherwise provided for applies to ten fifty five say also you're rely quite heavily on the description of ten fifty five syrian citizens what wasn't the court there simply emphasizing that you get the fee in any case in which the rules and validated for any reason was was the court really talking about  i'm not sure i'm not sure that they address step that the court did make clear that that it was clear and unambiguous and the only the only restriction on a person's ability to seek attorney's fees was that the person had a invalidation and his or her hand that they had invalidated a rule so no he did not go it did not address that issue specifically but it may clear that the statute was on and on and big u s unclear and that it could not force this court could not foresee any statute that they had fewer restrictions than ten fifty five say i think it's clear that ten fifty five sea creates a right i know counsel for the department is argued that it's merely a shifting or statutory fees shifted that we look at those cases that the actual fee petition is being a separate claim and there's lots of cases about it final order then suddenly becoming a non final order because another claim issue it's resolved and then there's the fee petition now makes the first judgment on file or not final anymore and so that we have this year for peace out there and that of course leads to the rest of the car so i want to claim it is a cause of action is it a claim and what's the difference well bets i think there's a lot of controversy over what the difference is because some people will equate a claim with a cause of action this court is t in marsh as a essentially any effect as broadly as any matter that was one of the definitions in march and march of a claim so it's a cause of action you have a language then would it not be similar to other cases where we say that all causes of action are we usually say claims must be brought before the final judgment so another was a risk to the comma well i think i think there's a difference here because the claim the claim did not accrue until after the rule was invalidate and if one for example looks at the all or which is a united states supreme court decision it held that you can't have and under no circumstances can you have a judgment which precludes claims that i think it is well it's an unusual case i think it i think it accrued i think it accrued when judge downers after judge donna's burger entered his order and then it on a crude when judge downers  rodriguez to have reversed and held that it was invalid so it actually and i view it was invalidated twice with a with a period of time of about seventeen months when it was quote unquote invalid even linda recognize this that they generally claims for fees or quit on their phone we've been really true to situation where there's natural one is rule one thirty seven c e where the rule dictates that it has to be brought as part of the underlying proceeding or within thirty days can't you can't seek something based on something happening that hasn't happened yet and  specifically on liberty bell case underwriters as an older supreme court case and they've all held as did the u s supreme court that where the plane has not accrued at at where the claim does not occur until judgment in the underlying action or after that it couldn't have been brought insurance there's a there about eight nine ten appellate court cases that have held that where the claim arises either outside of the issues on appeal or after the underlying judgment that it's  hundreds first off the department did not declare war on dr rodriguez the department received a complaint from a citizen that that required the proper to investigate and eventually decided to file administrative charges what happened after that was the involving this issue that my point suggestion is that all the fees for all of that litigation that they initiated should be shifted on to the state and that that is what the general simply intended with this language and be a very odd intention from the general assembly in a statute like this that essentially gives up the state's sovereign immunity where we would actually write a check to someone in your honour's understand that that doesn't happen much this is twenty five c it's buried in the administrative procedure act there statute of limitations there is no provision in the statute for venue as to how you bring these claims that's because this wasn't intended by the general assembly to be a cause of action it was intended to be a claim and it was  about rule three or four essay the case wouldn't have been final and judge dunnage brother would have known that and he would have had to take a fee petition then we would know how much their want to charge per hour and how many hours they had put in all of that would have been presented to him none of it was those thirty days passed it's my contention that the case and it what happened subsequently were different cases this is a different case and it's the language of the statute that you control the outcome of this case my opponent really spent no time talking about that but the language the court the litigation expenses the action all goes to an understanding of the case that's before the court that the general assembly was thinking about i think it was probably an administrative review action your honor that they had in mind that's the way these cases typically come out of the agency up into the courts in the circuit court on a petition for administrative review dec actions are different they're more common yes the statute applies to decorations too but not in this way citizens organizing project and aren't both talked about the broad reach of the fees how much you can claim but never said anything at all about how that whether that could be brought is a separate claim there's nothing in orange there's nothing in citizens organizing projects that suggest that anybody can file a new case in the circuit court seeking fees it's an unusual procedure and i don't know of any of the statutes you discussed in our for example that allow it it's not something in my experience quite frankly that we seek new claims standalone claims i would like my fees for that case that was decided years ago it is new that they bring up the statute of limitations that they hadn't argued before they had said throughout their brief in the circuit court to end to the trial court court but the cause of action was unbound it that they could bring it whenever that makes no sense the argument that they have five years makes more sense but again there's nothing here to suggest that the general assembly had a cause of action in mind when they enact this law my understanding of procedurally how this works is simple and straightforward i think it's the procedure that most of the bar understands and courts have understood the cases back that out they've got a strange view that there's been too declarations here of the is a very straightforward simple statute and i ask the court to interpret it that way if there are no further questions i ask that the appeals court judgement be reversed and that the judgment of the circuit court can be reinstate