concurring in part and dissenting in part:
I write separately because I take issue with the portion of the opinion offering the Department the “choice” of applying the credible-evidence standard while strictly adhering to the applicable statutes and regulations or applying a more stringent preponderance-of-the-evidence standard and gaining some flexibility in compliance requirements. See 209 Ill. 2d at 283-84. While I agree that the credible-evidence standard, as currently interpreted by the Department, is problematic and requires close judicial scrutiny, I believe that it is unwise for this court to override the legislature’s decision.
Section 3 of the Act establishes that credible evidence is the appropriate standard for making an indicated finding. 325 ILCS 5/3 (West 1998) (defining an “indicated report” as “a report made under this Act if an investigation determines that credible evidence of the alleged abuse or neglect exists” (emphasis added)). In turn, “credible evidence” is defined in the Department’s regulations as “available facts when viewed in light of the surrounding circumstances [that] would cause a reasonable person to believe that a child was abused or neglected.” (Emphasis added.) 89 Ill. Adm. Code § 300.20 (2000). In my view, consideration of all the available evidence, not just that evidence tending to supporting an indicated finding, is necessarily included in any valid application of this “reasonable person” standard. This standard has, however, been interpreted to permit an indicated report to be filed without consideration of any exculpatory evidence. 209 Ill. 2d at 280-81. Due process concerns arise, in part, when “credible evidence” is interpreted as not requiring consideration of both exculpatory and inculpatory evidence. 209 Ill. 2d at 280-81. To overcome these concerns, this court need only alter the Department’s working definition of “credible evidence.” Specifically, the Department could cure the deficiencies by requiring review of the exculpatory evidence that was reasonably available at the time as part of the credible-evidence standard. This requirement is already implicit in the reasonable-person standard currently specified in the Department’s regulations. 89 Ill. Adm. Code § 300.20 (2000). We need not create out of whole cloth an entirely new standard requiring a preponderance of the evidence without strict compliance with the applicable time limitations. Moreover, in its effort to override the legislature’s mandated “credible evidence” standard, the majority has addressed an issue that need not be reached by this court, rendering its opinion purely advisory.
In Dupuy v. McDonald, No. 97—C—4199 (N.D. Ill. July 10, 2003) (Dupuy II), appeal pending, the federal district court addressed the issue of the appropriate standard by approving modifications to the Department’s internal procedures. I believe these modifications effectively reduce the risk that an erroneous indicated report will negatively impact an individual’s employment and, thus, run astray of due process. The Dupuy II court entered a preliminary injunction imposing a more rigorous interpretation of the “credible evidence” standard. Under this interpretation, the Department is required to apply specific investigatory procedures and to consider both inculpatory and exculpatory evidence prior to making an indicated report. Dupuy II, slip op. at 4-5. Those practices comport with due process, reduce the risk of unwarranted negative consequences due to an indicated finding based on one-sided information, and maintain a single “credible evidence” standard in all cases, thus avoiding any potential equal protection problem. Additional safeguards ordered by the court include mandatory telephonic administrative review hearings before making and registering indicated reports in the State Central Registry. These hearings were designed to afford the subject an appropriate, albeit limited, opportunity to be heard prior to a deprivation of protected liberty interests by disclosure of indicated reports to third parties. Dupuy II, slip op. at 5, 7.
In addition, the federal district court concluded that administrative hearings requested after an indicated finding “should be completed within 35 days from the date” an appeal is requested. Dupuy II, slip op. at 9. This is far earlier than the 90 days currently permitted in the Department’s rules (89 Ill. Adm. Code § 336.220(a) (2002)). In retaining the 90-day ceiling, however, the court cautioned that “[s]hould history demonstrate a pattern of non-compliance, *** the court will entertain a renewed motion for imposition of some form of self-executing sanction.” Dupuy II, slip op. at 10.
I share the Dupuy II court’s concern that judicial mandates may be ineffectual in light of delays historically experienced in the Department’s appeal process. I also believe the same concern may apply to this court’s opinion due to its reliance on the 90-day time period imposed by the Department’s own rules (89 Ill. Adm. Code § 336.220(a) (2002)). Dupuy II, slip op. at 8. Since this limit was created by the Department and not the legislature, the Department may elect to unilaterally extend the permissible time between a request for a hearing and the release of a final decision (see 89 Ill. Adm. Code § 336.220(a) (2002)) rather than revamp its procedures to apply a preponderance-of-the-evidence standard. Any additional delay in the administrative appeal process would again raise the specter of the due process clause. For this reason, I echo the Dupuy II court’s hope that the Department will zealously attempt to resolve “the overwhelming majority of cases” within the current 90-day time limit. Dupuy II, slip op. at 10.