City of Chicago v. Cotton, No. 1-03-2892.

• Court: United States Appellate Court of Illinois
• Citation: 292 Ill.Dec. 264,826 N.E.2d 405,356 Ill. App.3d 1
• Decision Date: 28 February 2005
• Parties: CITY OF CHICAGO, Plaintiff-Appellant, v. Viola COTTON, et al., Defendant-Appellee.
• Docket Number: No. 1-03-2892.

826 N.E.2d 405
356 Ill. App.3d 1
292 Ill.Dec. 264

CITY OF CHICAGO, Plaintiff-Appellant,
v.
Viola COTTON, et al., Defendant-Appellee

No. 1-03-2892.

Appellate Court of Illinois, First District, First Division.

February 28, 2005.

826 N.E.2d 406

Mara S. Georges, Corporation Counsel of the City of Chicago, Lawrence Rosenthal, Deputy Corporation Counsel, Benna Ruth Solomon, Chief Assistant Corporation Counsel, Sara K. Hornstra, Assistant Corporation Counsel, for Appellant

Justice GORDON delivered the opinion of the court:

Plaintiff, City of Chicago (hereinafter City), appeals from the denial of its motion to reconsider the statutory damages imposed on defendant, Viola Cotton. The City contends that the circuit court acted without authority and entered a void judgment when, after finding liability against Cotton under an ordinance that set a range for monetary fines in the event of a violation, it imposed a fine below that range. We reverse and remand.

I. FACTUAL BACKGROUND

Cotton owned two rental properties on the south side of Chicago at 1739 East 78th Street and at 7801 South Ridgeland Avenue, and was responsible for paying their gas bills. By the beginning of 2002, however, Cotton had fallen in arrears on such payments, creating an outstanding bill between $10,000 to $12,000. Hence, gas service was discontinued to those properties, depriving the tenants therein of heat and hot water. This condition persisted in the properties for 20 days, between January 8 and February 7, 2002.

In response to the condition of the properties, the City filed a complaint against Cotton, alleging violation of the sections of the Building Code (Code) requiring the maintenance of adequate heating facilities in residential buildings (Chicago Municipal Code § 13-196-400 (1988)), the provision of heat (Chicago Municipal Code § 13-196-410 (1988)), and the provision of hot water (Chicago Municipal Code § 13-196-430 (1988)). Among other remedies, including the appointment of a receiver to reestablish heat to the properties, the City sought the imposition of a penalty in the amount of $1,500 per day that the properties

826 N.E.2d 407

were in violation of the Code. The City calculated the $1,500 daily penalty as $500 for each Code section allegedly violated

In its answer to the complaint, Cotton admitted her failure to comply with the cited provisions of the Building Code for the time period charged. Based on these admissions, the City moved for and was granted summary judgment. However, the circuit court only awarded damages in the amount of $2,000 based on a calculation of $100 per day for 20 days of noncompliance.

The City moved the circuit court to reconsider its judgment, arguing that the circuit court was required to impose a fine of at least $12,000, as the Code provided for a minimum fine of $200 per day per violation. The circuit court denied the motion, however, and the City now appeals.

II. ANALYSIS

We have been denied the benefit of an appellee's brief in this case. However, we will still address the merits as instructed by our supreme court in First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill.2d 128, 133, 345 N.E.2d 493, 495 (1976) ("if the record is simple and the claimed errors are such that the court can easily decide them without the aid of an appellee's brief, the court of review should decide the merits of the appeal").

On appeal, the City argues that, as the Code's language is clear and fixes a minimum penalty, without investing any discretion in a court to deviate from the prescribed range of penalties, the circuit court abused its discretion by imposing a penalty below the minimum penalty fixed by the Code. Cotton, on the other hand, would appear to argue that the circuit court has an inherent power to craft a remedy appropriate to the circumstances that could not be fettered by a legislative body, at least in the context of civil, municipal ordinance violations.

At the motion hearing, the circuit court inquired "Well, what about the notion of discretion? * * * Shouldn't I have the discretion to, in the context of a particular set of circumstances, deviate below or above the window, if you will, provided by either the City Council of the City of Chicago or the General Assembly down in Springfield?" Picking up on this question, Cotton argued:

"Judge, as you probably well know, there is this public debate that goes on both in state courts and federal, about judicial discretion.

* * *

And those on one side suggest that we empowered you to make decisions, but on the other hand, under our system of government, there is a legislative body that enacts rules. So what is the balance? Where is the balance of power?

And there is this frustration in some circles that say that, you know, we entrust a lot of power in judges, but, at the same time, we don't trust them to do what is right in certain situations, and that debate is going on primarily in the context on criminal sentences, but it applies in other circles, I believe.

And, in fact, in the very statute that we are arguing about, there is this right that they say should be from a minimum of $200 to, I think, a max of five. So inherent in the words is the notion of discretion.

Now, since our system operates basically on the English common law where judges were given discretion in fashioning an appropriate remedy given certain facts, and, in fact, inherent in the decision is that notion, the abiding notion that in our system of legal jurisprudence, there is the notion of judicial

826 N.E.2d 408

discretion, and probably the only area of law that I am aware of right now where judges' hands are more bound than others is in the criminal area."

Cotton also presented the circuit court with the appellate court's decision of Village of Glenview v. Ramaker, 282 Ill. App.3d 368, 217 Ill.Dec. 921, 668 N.E.2d 106 (1996), urging that, under Ramaker, when a defendant later comes into compliance with a statute, and is otherwise cooperative with authorities, a court may impose a penalty beneath that specified in the statute.

After hearing these arguments, the circuit court concluded:

"[T]his is an important issue, and it's an issue, which I believe is really appropriate for further appellate direction.

* * *

I am going to rely on the Ramaker case for the proposition that in a civil action commenced by a municipality like the City of Chicago, in assessing a per diem penalty or find once liability has been established, that there exists with the trial court the discretion to either deviate downward from the minimum penalty recited in that local ordinance or similarly, to deviate above the maximum penalty stated by that same ordinance."

We disagree with Cotton and the circuit court, and agree with the City.

It is axiomatic that, "[w]here a statute is clear and unambiguous," "[t]he statute must be enforced as written, and a court may not depart from its plain language by reading into it exceptions, limitations, or conditions not expressed by the legislature." Lawrence v. Regent Realty Group, Inc., 197 Ill.2d 1, 10, 257 Ill.Dec. 676, 754 N.E.2d 334, 339 (2001); see also In re D.L., 191 Ill.2d 1, 9, 245 Ill.Dec. 256, 727 N.E.2d 990, 994 (2000) ("there is no rule of construction that authorizes a court to say that the legislature did not mean what the plain language of the statute provides"); County of Knox ex rel. Masterson v. Highlands, L.L.C., 188 Ill.2d 546, 556, 243 Ill.Dec. 224, 723 N.E.2d 256, 263 (1999) ("In interpreting a statute, it is never proper for a court to depart from [the] plain language by reading into a statute exceptions, limitations, or conditions which conflict with the clearly expressed legislative intent"); People ex rel. Baumgardner v. Shultz, 298 Ill. 125, 128, 131 N.E. 279, 280 (1921) ("The courts cannot say that the legislature did not mean what in plain language is expressed in the statute as its intention, and where the statute does not violate a constitutional provision it is the duty of this court to give effect to such intention though evil consequences may result"); McGann v. People ex rel. Simpson, 227 Ill. 567, 570, 81 N.E. 702, 703 (1907) ("The courts cannot disregard the plain language of a statute, and it is their duty to accept it as they find it and enforce it as it is plainly written"); Rucker v. Fuller, 11 Ill. 223, 229, 1849 WL 4280 (1849) ("when the Legislature has clearly declared its intention, the Courts have no power to depart from the plain language and requirement of the statute for the purpose of establishing, as they may suppose, a more equitable rule").

This principle is equally applicable in civil cases as in criminal cases, as demonstrated by the fact that all the cases just cited were, in fact, civil disputes. See Lawrence, 197 Ill.2d 1, 257 Ill.Dec. 676, 754 N.E.2d 334 (involving tenant suit against landlord under Chicago Residential Landlord Tenant Ordinance); In re D.L., 191 Ill.2d 1, 245 Ill.Dec. 256, 727 N.E.2d 990 (termination of parental rights involving the Adoption Act); Highlands, 188 Ill.2d 546, 243 Ill.Dec. 224, 723 N.E.2d...