NO. 4-01-0760

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

MARK LYON,						)	Appeal from 

		Plaintiff-Appellee,			)  	Circuit Court of

          v.						)	Champaign County

THE DEPARTMENT OF CHILDREN AND FAMILY	)	No. 01MR226

SERVICES; JEFF McDONALD, in his		)

Capacity as Director of the Department	)	

of Children and Family Services; and	)	

CAROL SILCOX, in Her Capacity as		)	Honorable

Administrative Law Judge,			)	Thomas J. Difanis,

		Defendants-Appellants. 		)	Judge Presiding.

_________________________________________________________________

		JUSTICE APPLETON delivered the opinion of the court:

		The Department of Children and Family Services

(Department) recorded in its central register that plaintiff,

Mark Lyon, had sexually molested a minor.  See 325 ILCS 5/7.7

(West 2000).  Lyon requested the Department to remove the record

from the registry, and when the Department refused, he filed an

administrative appeal.  See 325 ILCS 5/7.16 (West 2000).  After

an evidentiary hearing, an administrative law judge issued a

recommended decision upholding the Department's initial decision

not to remove the record.  

		The Department's Director adopted the recommended

decision, and Lyon filed an action for administrative review,

naming the Department, Director, and administrative law judge as

defendants.  See 325 ILCS 5/7.16 (West 2000); 735 ILCS 5/3-103

(West 2000).  The circuit court reversed the Director's decision

on the ground that the Department's untimely production of

documents during the administrative proceedings had deprived Lyon of due process.  Defendants appeal.  We disagree with the circuit court's rationale but affirm its judgment. 

	I. BACKGROUND

		Section 7.7 of the Abused and Neglected Child Reporting

Act (Act) (325 ILCS 5/7.7 (West 2000)) requires the Department to

maintain "a central register of all cases of suspected child

abuse or neglect."  As soon as it receives a report of alleged

child abuse or neglect, the Department's regional child protec

tive service unit (service unit) must transmit a copy of it to

the central register.  325 ILCS 5/7.10 (West 2000).  Within 60

days after receiving the report, the service unit must determine

whether the report is "'indicated' or 'unfounded.'"  325 ILCS

5/7.12 (West 2000).  If it is impossible to begin or complete an

investigation within 60 days, the service unit may deem the

report "'undetermined[,]' provided every effort has been made to

undertake a complete investigation."  325 ILCS 5/7.12 (West

2000).  "The Department may extend the period in which such

determinations must be made in individual cases for additional

periods of up to 30 days each for good cause shown."  325 ILCS

5/7.12 (West 2000).

		A report is "indicated" "if an investigation determines

that credible evidence of the alleged abuse or neglect exists." 

325 ILCS 5/3 (West 2000).  A report is "unfounded" if "it is

determined after an investigation that no credible evidence of

abuse or neglect exists."  325 ILCS 5/3 (West 2000).  A report is

"undetermined" if "it was not possible to initiate or complete an

investigation on the basis of information provided to the Depart ment."  325 ILCS 5/3 (West 2000).  The Act does not define the

term "credible evidence."  A regulation says:  "'Credible evi

dence of child abuse or neglect' means that the available

facts[,] when viewed in light of surrounding circumstances[,]

would cause a reasonable person to believe that a child was

abused or neglected."  89 Ill. Adm. Code §300.20 (Conway Greene

CD-ROM June 2002).

		When receiving a report, the service unit "shall make

an initial investigation and an initial determination whether the

report is a good[-]faith indication of alleged child abuse or

neglect."  325 ILCS 5/7.4(b)(2) (West 2000).  If the report is a

good-faith indication of abuse or neglect, the service unit will

begin a formal investigation to decide whether the report is

indicated or unfounded.  325 ILCS 5/7.4(b)(3) (West 2000).  

		"Investigative staff shall have direct, in-person

contact with the alleged child victim, the alleged perpetrator,

and the child's caretaker within seven days of the date the

report was received," unless the person is inaccessible.  89 Ill.

Adm. Code §300.110(c) (Conway Greene CD-ROM June 2002).  "The

Department may make collateral contacts with persons other than

the subjects of the report or the reporter to obtain further

information regarding suspected child abuse or neglect."  89 Ill.

Adm. Code §300.110(e) (Conway Greene CD-ROM June 2002).  In

deciding whether to make "collateral contacts," the Department

will weigh (1) the allegations in the report, (2) the severity of

the incident, and (3) the likelihood that the collateral contact

will have relevant information.  89 Ill. Adm. Code §300.110(e)(1) through (e)(3) (Conway Greene CD-ROM June 2002).

		When the service unit finishes its formal investiga

tion, it must report its finding "forthwith" to the central

register, i.e., the finding of "indicated" or "unfounded."  325 ILCS 5/7.12 (West 2000).  The Department must transmit to dis

trict school superintendents information regarding any employee

of a school whom the Department has found to be a perpetrator in

an indicated report.  89 Ill. Adm. Code §300.140(b) (Conway

Greene CD-ROM June 2002).  If the subject of the report is a

school employee, the school superintendent must notify the State

Board of Education, the school board, and the chief administra

tive officer of the school that the employee "has been named as a

perpetrator in an indicated report."  105 ILCS 5/10-21.4 (West

2000).  

		The Department's regulation further provides:

			"(b) The Department will transmit to

district school superintendents in Illinois

and private school administrators information

regarding any persons known to be employed in

a school or who otherwise come into frequent

contact with children in a school who are

determined to be perpetrators of indicated

reports of child abuse and neglect.

			(c) the Department will transmit to

regional superintendents and the State Super

intendent of Education information that a

person known to be a holder of a certificate issued by the State Board of Education has

been named as a perpetrator in an indicated

report of child abuse or neglect."  89 Ill.

Adm. Code §§300.140(b), (c) (Conway Greene

CD-ROM June 2002).

If the perpetrator requests an expungement of the indicated

record or an administrative hearing, the Department will so

notify the district and regional school superintendents and the

State Superintendent of Education.  89 Ill. Adm. Code §300.140(d)

(Conway Greene CD-ROM June 2002).

		Within 60 days after the Department notifies the

"subject of a report" that it has completed its investigation, 

the "subject" "may request the Department to amend the record or

remove the record of the report from the register."  325 ILCS

5/7.16 (West 2000).  "Subject of a report" means either the child

who was abused or neglected or the "person responsible who is

also named in the report."  325 ILCS 5/3 (West 2000).

		If the Department declines a request to expunge a

record, the regulations provide for a two-step appeal.  "To begin

the appeal process[,] the subject shall request in writing that

the Department review its decision."  89 Ill. Adm. Code

§336.40(c) (Conway Greene CD-ROM June 2002).  If, after reviewing

the file, the Department again declines to expunge the record,

the Department will issue a notice of right to an administrative

hearing, and the subject can request a hearing in accordance with

that notice.  89 Ill. Adm. Code §336.80 (Conway Greene CD-ROM

June 2002).

		If the Department disregards the subject's request to

expunge a record or does not act within 10 days, "the subject

shall have the right to a hearing within the Department to

determine whether the record of the report should be amended or

removed on the grounds that it is inaccurate or it is being

maintained in a manner inconsistent with [the] Act."  325 ILCS

5/7.16 (West 2000).  "Such hearing shall be held within a reason

able time after the subject's request ***."  325 ILCS 5/7.16

(West 2000).  A regulation requires the chief administrative law

judge to "schedule *** a hearing at a date within 70 calendar

days after the date of receipt of the appellant's request for an

administrative hearing."  89 Ill. Adm. Code §336.110(a)(1)

(Conway Greene CD-ROM June 2002).  

		The Act provides:

		"In such hearings, the burden of proving the

accuracy and consistency of the record shall

be on the Department and the appropriate

Child Protective Service Unit.  The hearing

shall be conducted by the Director or his

designee, who is hereby authorized and empow

ered to order the amendment or removal of the

record to make it accurate and consistent

with this Act.  The decision shall be made,

in writing, at the close of the hearing, or

within 45 days thereof, and shall state the

reasons upon which it is based."  325 ILCS

5/7.16 (West 2000).

		At the administrative hearing, "the Department must

prove that a preponderance of the evidence supports the indicated

finding, or that the record is being maintained in a manner

consistent with" the Act and regulations.  89 Ill. Adm. Code

§336.100(e)(2) (Conway Greene CD-ROM June 2002).  "'Preponderance

of the evidence' means the greater weight of the evidence or

evidence which renders a fact more likely than not."  89 Ill.

Adm. Code §336.20 (Conway Greene CD-ROM June 2002).

		Within 20 days after receiving a timely request for an

appeal, the Department shall send the appellant a copy of the

investigative file, with confidential information deleted in

accordance with Title 89, part 431, of the Illinois Administra

tive Code (89 Ill. Adm. Code §§431.15 through 431.140  (Conway

Greene CD-ROM June 2002)).  89 Ill. Adm. Code §431.60(a) (Conway

Green CD-ROM June 2002).  The Department shall not disclose the

identity or location of persons reporting or cooperating in the

investigation unless "an administrative law judge determines that

the lack of such information would prejudice the appellant's case

or violate due process of law principles."  89 Ill. Adm. Code

§431.60(a) (Conway Green CD-ROM June 2002).  

		Lyon was the choral director at Gibson City High School

in Gibson City, Illinois.  On February 9, 2000, the Department

received a report that he was suspected of sexually molesting a

student, H.B.  The Department investigated the allegation, and in

a letter dated April 11, 2000, notified Lyon it had determined

the report was "indicated, for sexual exploitation, sexual

molestation, and risk of sexual harm."  The letter further informed him that the "allegations will be held in the State

Central Registry for 50 years."  That same day, the Department

sent a copy of the letter to the superintendent of Gibson City

High School as well as to the regional superintendent of schools. 

		On May 15, 2000, Lyon requested the Department to

expunge the record from the central register and provide him a

copy of the Department's investigative file.  (Actually, it was

not until July 19, 2000, that the Department recorded the "indi

cated" finding in the central register.)  The Department provided

Lyon a copy of its investigative file on May 25, 2000, but

omitted the police report.  On July 17, 2000, Lyon again  asked

the Department, in writing, for a complete copy of its investiga

tive file.    

		On July 19, 2000, the administrator of the central

register sent Lyon a letter denying his request for expungement. 

The letter stated the Department had "determined the report to be

'indicated.'  This means that credible evidence of abuse or

neglect has been found."  The letter informed Lyon that if he

wished to appeal, he had 60 days to do so.

		On August 1, 2000, Lyon again wrote the Department,

asking for the police report.  On August 10, 2000, the Department

denied his request on the ground that he had not yet filed an

appeal and departmental policy forbade releasing the police

report to him until he did so.

		Lyon filed his appeal with the Department on August 29,

2000.  In a letter dated September 13, 2000, the Department

denied the appeal and declined to remove the record of the "indicated" finding from the central register.  The letter said

that after "review[ing] all available facts," the Department had

found documentation of "credible evidence to support the indi

cated finding."  The letter informed Lyon he had 15 days to

request a hearing within the Department.

		On September 13, 2000, Lyon sent another letter to the

Department, asking yet again for the police report.  On September

15, 2000, he requested a hearing on the denial of his appeal.

		On October 10, 2000, Lyon filed a motion to compel the

Department to produce its unexpurgated investigative file,

including the police report.  The next day, he filed a motion to

expunge the record of the "indicated" finding on the ground that

the Department had violated his due-process rights in that (1)

the Department did not complete its investigation within 60 days;

(2) the hearing would not begin until 266 days after the investi

gation began; (3) the Department gave him no opportunity for an

informal conference; (4) the Department refused to provide him a

complete copy of the investigative file, including the police

report; and (5) the Department had denied his appeal under a

credible-evidence rather than a preponderance-of-the-evidence

standard of proof.  On October 13, 2000, the administrative law

judge granted Lyon's motion for the unexpurgated file, and the

next day, the Department provided the complete file to Lyon.

		At the beginning of the hearing on November 1, 2000,

the administrative law judge denied Lyon's motion to expunge. 

The Department then presented its case.  The administrative law

judge admitted into evidence the Department's investigative file, including the police report.  On that day, the Department brought

to the hearing seven additional pages of the police report. 

Prior to the hearing, neither the Department nor Lyon possessed

those seven pages, and therefore the Department withdrew them

from the exhibit.

		During the Department's case, H.B. testified that as

Lyon was giving her a ride home late at night on January 14,

2000, they stopped on a country road, where he kissed her, pulled

her tank top off, fondled her rear, and masturbated in her

presence.  She was 15 at the time and a student at the school

where Lyon was employed as a teacher.  

		The Department rested on November 1, and, on her own

motion, the administrative law judge continued the hearing until

November 13, 2000.  The parties later agreed to a continuance

until December 19, 2000.  Because the administrative law judge

was involved in an automobile accident on the way to the hearing

on December 19, she continued the hearing, on her own motion,

until January 24, 2001.

		On January 24, 2001, Lyon presented his case.  He

testified he merely gave H.B. a ride home and never touched her

or sexually molested her.  He further testified that the grand

jury refused to return an indictment against him for the offense

of which the Department accused him.  The hearing concluded that

day.  On February 9, 2001, the administrative law judge issued a

recommended decision upholding the Department's "indicated"

finding.  On March 23, 2001, the director adopted the administra

tive law judge's recommended finding as his final administrative decision.

		Lyon filed a complaint for administrative review on

April 9, 2001.  In a docket entry dated July 27, 2001, the

circuit court said:

		"The [c]ourt has heard arguments on July 24,

2001.  The [c]ourt has considered this matter

and determines that the decision of the ALJ

[(administrative law judge)] is to be re

versed.  The Department's refusal to provide

full and complete discovery to the

[p]laintiff in a timely manner violated his

due[-]process rights."

This appeal followed.

	II. ANALYSIS

	A. Delays in Discovery

	   Defendants argue that because the Department produced the unexpurgated investigative file as soon as required under section

7.4(c)(1) of the Act (325 ILCS 5/7.4(c)(1) (West 2000)) and

section 431.60(a) of the Department's rules (89 Ill. Adm. Code

§431.60(a) (Conway Greene CD-ROM June 2002)), it did not violate

the due-process clause.

		The question is, what process was due to Lyon under the

federal and state constitutions?  One cannot find the answer to

that question in statutes or regulations.  See Cleveland Board of Education v. Loudermill, 470 U.S. 532, 541, 84 L. Ed. 2d 494, 503, 105 S. Ct. 1487, 1493 (1985).  Lyon had the right to due

process "'not by legislative grace, but by constitutional guaran tee.'"  Loudermill, 470 U.S. at 541, 84 L. Ed. 2d at 503, 105 S. Ct. at 1493, quoting Arnett v. Kennedy, 416 U.S. 134, 167, 40 L. Ed. 2d 15, 40, 94 S. Ct. 1633, 1650 (1974) (Powell, J., concur

ring in part).  Legislation does not determine the requirements

of the due-process clause.  See 89 Ill. Adm. Code §431.60(a)

(Conway Greene CD-ROM June 2002) (administrative law judge shall

order disclosure of otherwise confidential information according

to the dictates of due process).   

		What, then, does the due-process clause require? 

Broadly, it requires fundamental fairness in administrative

proceedings.  Cooper v. Department of Children & Family Services, 234 Ill. App. 3d 474, 486, 599 N.E.2d 537, 545 (1992).  More

specifically, with respect to discovery, it requires the adminis

trative agency "to disclose evidence in its possession which

might be helpful to [the] accused."  McCabe v. Department of Registration & Education, 90 Ill. App. 3d 1123, 1131, 413 N.E.2d 1353, 1359 (1980).  Administrative agencies have broad discretion

in conducting their hearings, although they must exercise that

discretion judiciously and not arbitrarily.  Comito v. Police Board of Chicago, 317 Ill. App. 3d 677, 687, 739 N.E.2d 942, 949 (2000), appeal denied, 193 Ill. 2d 584, 744 N.E.2d 283 (2001).  

		Lyon does not allege the Department failed to produce

the documents to him.  He merely alleges the Department failed to

produce the documents in a timely manner.  Lyon has to show how

the delay prejudiced him.  See McCabe, 90 Ill. App. 3d at 1131, 413 N.E.2d at 1359.  He merely says, vaguely, in his brief: 

"Without being provided with these complete and unexpurgated files in a timely fashion, the [p]laintiff's investigation and

trial preparation were seriously impeded."  How, specifically,

were they impeded?  What helpful witnesses could Lyon not inter

view or subpoena, and what exculpatory evidence could he not

present?  For all that appears in the record, the seven pages of

the police report and the witnesses listed therein might have

hurt Lyon's case rather than helped it.  He had from November 1,

2000, to January 24, 2001, to follow any leads the seven pages

might have disclosed.  Considering that the agency had broad

discretion in the conduct of the proceedings, we find no basis in

the record for holding that the proceedings were fundamentally

unfair, at least with respect to discovery.  We disagree with the

circuit court that the Department's alleged lateness in producing

the documents violated Lyon's right to due process.

		Even if we considered the allegedly untimely discovery

not as a constitutional violation but as a possible violation of

departmental rules, Lyon would still have to show actual preju

dice from the violation.  See Little v. Civil Service Comm'n, 131 Ill. App. 3d 848, 851, 476 N.E.2d 448, 450 (1985).  He has not

done so.  Lyon cannot receive a windfall from a procedural

violation that apparently caused him no actual harm.

	B. Length of the Administrative Proceedings and Standard of Proof

		Lyon argues the Department violated his constitutional

right to due process by missing deadlines that the Act and

administrative rules prescribed.  Defendants argue the Department

did not take an unreasonably long time to investigate and decide

Lyon's case.  

		Due process requires the agency to provide a hearing

"at a 'meaningful time.'"  Stull v. Department of Children & Family Services, 239 Ill. App. 3d 325, 335, 606 N.E.2d 786, 793 (1992), quoting Loudermill, 470 U.S. at 547, 84 L. Ed. 2d at 507, 105 S. Ct. at 1496.  Taking an unreasonably long time to provide

a hearing is the same as failing to provide a hearing at a

meaningful time.  Excessive delays in administrative proceedings

in which constitutionally protected interests are at stake make

the proceedings fundamentally unfair.  Stull, 239 Ill. App. 3d at 335, 606 N.E.2d at 793.  Although legislation does not determine

the requirements of the due-process clause, we can consult the

statutory and regulatory deadlines as a guide for ascertaining

what is a reasonable time.  See Cavarretta v. Department of Children & Family Services, 277 Ill. App. 3d 16, 25, 660 N.E.2d 250, 256 (1996).  

		The statute and regulations require the Department to

complete its investigation within 60 days after receiving the

report of child abuse or neglect.  325 ILCS 5/7.12 (West 2000);

89 Ill. Adm. Code §300.90 (Conway Greene CD-ROM June 2002).  On

February 9, 2000, the Department received the report.  On March

31, 2000, an investigator for the Department, Sheree Foley

received a 30-day extension to complete her investigation, but

she did not use the full 30 days.  She completed her investiga

tion on April 17, 2000.  Thus, the Department missed no deadlines

in the investigation.

		If the service unit determines the report is "indi

cated," it must notify the central register immediately of that finding.  325 ILCS 5/7.10 (West 2000).  In a letter dated April

11, 2000, the Department notified Lyon it had found the report to

be "indicated," and on the same day, it notified Lyon's employer. 

For reasons that are unclear, the Department did not put the

"indicated" finding in the central register until July 19, 2000,

when it denied Lyon's request to expunge the record.  

		It is difficult to see how Lyon was prejudiced by the

Department's delay in entering the "indicated" finding into the

central register.  According to section 7.16 of the Act (325 ILCS

5/7.16 (West 2000)), Lyon had 60 days, after receiving notifica

tion of the "indicated" finding, to request expungement of the

record.  He received notification of the "indicated" finding on

April 11, 2000, and requested expungement on May 15, 2000, more

than a month later.  If the Department did not act within 10 days

on his request for expungement, Lyon had a right to a hearing. 

See 325 ILCS 5/7.16 (West 2000).  Thus, under the statute, he

could have requested a hearing, or appealed, within 10 days after

May 15.  Instead, he waited for the Department's response to his

request for expungement.  He received the unfavorable response on

July 19, 2000, and filed his administrative appeal on August 29,

2000, more than a month later.      

		The statute requires the Department to hold a hearing

within a reasonable time after the request.  325 ILCS 5/7.16

(West 2000).  Lyon requested a hearing on September 15, 2000, and

the hearing began on November 1, 2000.  Partly because of a 36-

day continuance to which the parties agreed and partly because of 

continuances that the administrative law judge ordered sua sponte, the hearing was not concluded until January 24, 2001.

		The regulations require the Director to issue his

decision within "90 days after receipt of a timely and sufficient

request for an appeal."  89 Ill. Adm. Code §336.220(a) (Conway

Greene CD-ROM June 2002).  A "request for an appeal" is "the

written request by an appellant for an administrative hearing." 

89 Ill. Adm. Code §336.20 (Conway Greene CD-ROM June 2002).  The

statute requires the Director to issue his opinion within 45 days

after the hearing.  325 ILCS 5/7.16 (West 2000).  Lyon requested

a hearing on September 15, 2000.  The hearing ended on January

24, 2001.  The Director issued his decision on March 23, 2001--

188 days after the request for a hearing, 36 days of which were

attributable to Lyon because of his agreement to a continuance. 

Therefore, the Department missed the 90-day deadline by 62 days. 

The Director issued his decision 58 days after the hearing

concluded, and, therefore, the Department missed the 45-day

deadline by 13 days.  

		In S.W. v. Department of Children & Family Services, 276 Ill. App. 3d 672, 680, 658 N.E.2d 1301, 1307-08 (1995), the

Department held a hearing six months after the plaintiff re

quested one, and the administrative appeal took 8.5 months.  The

First District held that although the Department exceeded the

statutory and regulatory deadlines, these deadlines were direc

tory rather than mandatory and the delays were not so excessive

as to violate due process.  S.W., 276 Ill. App. 3d at 680-81, 658 N.E.2d at 1307-08.

		The delays in the present case were not so long as those in S.W., and the First District held that the delays in S.W. were not so long as to violate the plaintiff's right to due process.  S.W. never considered, however, the constitutionality of the "credible-evidence" standard of proof and the relationship

of that standard of proof to the provision of a timely eviden

tiary hearing.

		Lyon contends that the Department's filing an "indi

cated" report against him in the central registry on the basis of

"credible evidence" rather than a preponderance of the evidence

violated his right to due process.

		In Cavaretta, 277 Ill. App. 3d at 28, 660 N.E.2d at 258, the Second District considered "whether the 'credible[-]

evidence' standard of review (89 Ill. Adm. Code §§336.130(b)(14), 336.150(a) (1994)) deprive[d] a subject of due process."  (Empha

sis added.)  The sections of the Illinois Administrative Code

that the court cited in parentheses dealt solely with the admin

istrative law judge's recommendation after an evidentiary hearing

and the director's acceptance, rejection, or modification of that

recommendation.  See Cavaretta, 277 Ill. App. 3d at 19, 660 N.E.2d at 252.  When the court held that the Department "should

at least be required to prove its case by a preponderance of the

evidence," the court was speaking only of the standard of review. 

Cavaretta, 277 Ill. App. 3d at 29, 660 N.E.2d at 258.  Then as now, in the statutory scheme, only during an administrative

appeal was the Department required to "prove" its case in an

evidentiary hearing.  Cavaretta, 277 Ill. App. 3d at 19, 660 N.E.2d at 252.  The court never held that "credible evidence" was an insufficient basis for the initial decision to file an "indi

cated" report in the central register.

		Other cases have so held, none of which bind us. 

Recently, in Dupuy v. McDonald, 141 F. Supp. 2d 1090, 1136 (N.D. Ill. 2001), the district court, reviewing the Act and regula

tions, held that disclosing an "indicated" finding to present and

prospective employers on the basis of "credible evidence" rather

than a preponderance of the evidence violated the alleged perpe

trator's right to due process.  The plaintiffs had "offered

unrebutted evidence that 74.6% of the indicated findings that are

challenged are ultimately reversed on review."  Dupuy, 141 F. Supp. 2d at 1136.  This "staggering expungement rate" suggested

to the court that "the risk of error inherent in the 'credible[-

]evidence' standard" was high.  Dupuy, 141 F. Supp. 2d at 1136.  The court also was concerned about "the inexcusable delays

experienced by [p]laintiffs in attempting to appeal, and seek

expungement of, the indicated findings against them," during

which "these individuals, labeled by the State as perpetrators of

child abuse and/or neglect, lose not only their pride and reputa

tion, but often their livelihood as well."  Dupuy, 141 F. Supp. 2d at 1130, 1138.

		Other states have statutes similar to the Act.  In

Valmonte v. Bane, 18 F.3d 992, 1001, 1004 (2d Cir. 1994), the federal court held that New York's statute violated the plain

tiff's right to due process in that it allowed the state to

record an "indicated" finding in the central register--and

thereby to disqualify the alleged perpetrator from employment in the field of child care--merely on the basis of "credible evi

dence" instead of a preponderance of the evidence.  

		New York courts have held that putting an "indicated"

finding in the central register on the basis of "credible evi

dence" does not in itself violate due process, if the state later

gives the alleged perpetrator notice and an opportunity to be

fully heard and "the standard of evidence necessary to maintain

the subject's name in the Registry is a fair preponderance of the

evidence."  Anonymous v. Peters, 189 Misc. 2d 203, 211, 730 N.Y.S.2d 689, 695-96 (2001).  They have held, however, that due

process requires the state "to substantiate reports of child

abuse by a fair preponderance of the evidence before they may be

disseminated to providers and licensing agencies as a screening

device for future employment."  In re Lee TT, 87 N.Y.2d 699, 712, 664 N.E.2d 1243, 1252, 642 N.Y.S. 2d 181, 190 (1996).

		In Petition of Preisendorfer, 143 N.H. 50, 56, 719 A.2d 590, 595 (1998), the Supreme Court of New Hampshire held:

		"[D]ue process requires that the

preponderance[-]of[-]the[-]evidence standard

apply in any hearing to determine whether an

individual's name should be added to the

central registry [citation] where that indi

vidual would be excluded from working in his

or her profession due to that listing."

A "probable-cause" standard of proof was unconstitutional. 

Preisdendorfer, 143 N.H. at 52, 719 A.2d at 592.  See Cavaretta, 277 Ill. App. 3d at 28, 660 N.E.2d at 258 (comparing the "credi ble evidence" standard to a "probable cause" standard).

		In In re Selivonik, 164 Vt. 383, 388, 670 A.2d 831, 835 (1995), quoting 33 Vt. Stat. Ann. tit. 33, §4912(10), Vermont's

statute allowed the agency to enter a complaint of child abuse

into the state registry if the agency determined "'after investi

gation that a report is based upon accurate and reliable informa

tion that would lead a reasonable person to believe that the

child has been abused or neglected.'"  After entering the peti

tioner's name in the registry, the agency warned the petitioner's

employer, a day care center, that continuing to employ the

petitioner would violate its license.  Selivonik, 164 Vt. At 385, 670 A.2d at 833.  The day care center fired the petitioner. 

Selivonik, 164 Vt. At 385, 670 A.2d at 833.  The supreme court held that even though the standard of proof for putting someone's

name into the central register was lower than that of a prepon

derance of the evidence, the standard did not violate due process

because the alleged perpetrator had a right to a postdeprivation

hearing in which the standard of proof was a preponderance of the

evidence.  Selivonik, 164 Vt. Atat 388, 670 A.2d at 835.  Here, under the Act and the Department's regulations, the alleged

perpetrator has a right to a prompt hearing under the

preponderance-of-the-evidence standard.  Only that right can

possibly save the credible-evidence standard from unconstitution

ality.

		"[B]eing placed on the State register of suspected

child abusers implicates a [f]ederal liberty interest." 

Cavaretta, 277 Ill. App. 3d at 22, 660 N.E.2d at 254.  To evalu ate the "credible-evidence" standard of proof, we weigh the

following three factors:  

		"(1) the nature of the private interest that

may be affected by a particular decision; (2)

the fairness and reliability of the existing

procedure and the effect of additional proce

dural safeguards; and (3) the governmental

interest."  Cavaretta, 277 Ill. App. 3d at 28, 660 N.E.2d at 258.

		Putting Lyon's name in the central register as a sexual

molester of a child and communicating the "indicated" finding to

his employer and the State Bboard of eEducation greatly impaired

his ability to pursue his chosen occupation, teaching.  See

Cavaretta, 277 Ill. App. 3d at 28, 660 N.E.2d at 258.  Consider ing the deep abhorrence in which society holds sexual predators

of children, the "indicated" finding could make Lyon unemployable

in any profession.  Typically, job applications ask whether the

applicant ever was fired and why.  The private interest in this

case is weighty.  

		The "credible-evidence" standard of proof is a less

rigorous standard than a preponderance of the evidence. 

Cavaretta, 277 Ill. App. 3d at 28, 660 N.E.2d at 258.  Requiring a higher standard of proof for recording "indicated" findings in

the central register could allow some abusers of children to

continue.  Investigators do not have the benefit of an eviden

tiary hearing, and the information they glean will seldom be as

complete as that which would emerge in such a hearing.  While the potential of injury to the alleged perpetrator is great if he or

she is innocent, the potential of injury to the child also is

great if the alleged perpetrator is guilty.  Of the two, adult

and child, the latter is arguably the most vulnerable and the

least powerful.  An alleged perpetrator can be exonerated and

reinstated, but the harm to the child can be permanent.  Perhaps

for those reasons the "credible-evidence" standard initially puts

the risk of error on the adult rather than the child, with the

understanding that the adult has the right to a prompt, full

evidentiary hearing in which the standard of proof is a prepon

derance of the evidence.  Statutes carry a strong presumption of

constitutionality.  Burger v. Lutheran General Hospital, 198 Ill. 2d 21, 39, 759 N.E.2d 533, 545 (2001).

		The credible-evidence standard is fair only if the

alleged perpetrator soon receives a hearing under the

preponderance-of-the-evidence standard and, soon after the

hearing, the Department issues a final decision.  If the Depart

ment enters an "indicated" report in the central register on the

basis of "credible evidence" rather than a preponderance of the

evidence, due process requires the Department to strictly comply

with its statutory and regulatory deadlines for processing the

administrative appeal.  By failing to meet statutory and regula

tory deadlines, the Department violated Lyon's right to due

process.  For that reason, we affirm the circuit court's judg

ment.

		Affirmed.

		COOK, J., concurs.

		MYERSCOUGH, J., dissents.

		JUSTICE MYERSCOUGH, dissenting:

	I respectfully dissent.  

	I disagree with the circuit court that the Department

failed to provide Lyons with complete and timely discovery.  The

Department was not provided that discovery to disclose, and when

it received the discovery, the discovery was provided.  I dis

agree with the majority’s opinion that the Department violated

Lyon’s right to due process.  While the entire appeal process

took about eight months to complete, the delay was not unreason

able due to inadvertent delays and Lyon’s agreement to continue. 

A time period of 104 days or 3.5 months elapsed from the time

that Lyon’s appeal rights accrued to the time that the hearing

commenced.  However, it was only 63 days from the time that Lyon

filed his appeal request until the first day of the hearing, and

46 days from the hearing request until the hearing began.  These

periods are much shorter than those found unconstitutional in

Stull, 239 Ill. App. 3d at 334-35, 606 N.E.2d at 792, (347 days), or Cavarretta, 277 Ill. App. 3d at 26-27, 660 N.E.2d at 257 (299 days), and well within the period found acceptable in S.W., 276 Ill. App. 3d at 680-81, 658 N.E.2d at 1308 (180 days).

	The Director issued his final decision on March 23,

2001, 246 days or a little over 8 months after the appeal process

began.  Again, this was a period found acceptable by the S.W. court (S.W., 276 Ill. App. 3d at 680-81, 658 N.E.2d at 1307-08);  and it was significantly shorter than the period that was found

unconstitutional in Stull, 239 Ill. App. 3d at 334-35, 606 N.E.2d at 792 (456 days), or Cavarretta, 277 Ill. App. 3d at 26, 660 N.E.2d at 257 (598 days).

	For these reasons, I would reverse the circuit court.