City of Chicago v. Cotton

Decision Date28 February 2005
Docket NumberNo. 1-03-2892.,1-03-2892.
Citation292 Ill.Dec. 264,826 N.E.2d 405,356 Ill. App.3d 1
PartiesCITY OF CHICAGO, Plaintiff-Appellant, v. Viola COTTON, et al., Defendant-Appellee.
CourtUnited States Appellate Court of Illinois

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

Justice GORDONdelivered 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 Streetand 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 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 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 alsoIn 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.SeeLawrence,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 256(dispute surrounding zoning laws);Shultz,298 Ill. 125, 131 N.E. 279(dispute over school district consolidation under then School Law);McGann,227 Ill. 567, 81 N.E. 702(employment dispute involving then civil service act);Rucker,11 Ill. 223(dispute among judgment creditors under statute allowing for attachment of judgment debtor's property).

A related and also well-established corollary to the principle that courts will adhere to and enforce the legislature's clearly expressed will is that, when a statute provides for certain penalties, without providing for additional judicial discretion, the courts will impose only those penalties provided.See generallyPeople v. Wade,116 Ill.2d 1, 6, 107 Ill.Dec. 63, 506 N.E.2d 954, 956(1987)("a trial court has an obligation to order the criminal penalties mandated by the legislature");People v. DeRosa,362 Ill. 161, 163, 199 N.E. 267, 268(1935)("the trial court...

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11 cases
  • City of Chicago v. Elevated Properties
    • United States
    • Illinois Supreme Court
    • Octubre 13, 2005
    ...§ 13-12-125(d) (2000). Under the plain language of the Code, no further discretion is invested in an enforcing court. The use of the word "shall" in the Chicago Municipal Code is mandatory, not directory. Cotton, 356 Ill.App.3d at 7, 292 Ill.Dec. 264, 826 N.E.2d 405, Puss N Boots, Inc. v. Mayor's License Comm'n, 232 Ill.App.3d 984, 987, 173 Ill.Dec. 676, 597 N.E.2d 650 (1992). Therefore, under section 13-12-125, the trial court was not authorized to find that Elevated compliedthat the trial court misconstrued the Vacant Buildings Ordinance by failing to impose the required fines for each day Elevated failed to meet the registration requirement. In City of Chicago v. Cotton, 356 Ill.App.3d 1, 292 Ill.Dec. 264, 826 N.E.2d 405 (2005), this court recently considered whether a trial court has discretion to impose a penalty below the minimum penalty required by the Chicago Municipal Code. In Cotton, we upheld the mandatory nature of the fines imposedIll.App.3d 1, 292 Ill.Dec. 264, 826 N.E.2d 405 (2005), this court recently considered whether a trial court has discretion to impose a penalty below the minimum penalty required by the Chicago Municipal Code. In Cotton, we upheld the mandatory nature of the fines imposed by section 13-12-040 of the Code, relying on a long line of cases requiring courts to enforce statutes and ordinances as written and prohibiting courts from reading exceptions, limitations or conditions into the statutes...
  • City of Atlanta, Logan Cnty., Ill., Corp. v. Armstrong
    • United States
    • United States Appellate Court of Illinois
    • Mayo 24, 2016
    ...847 N.E.2d 565, 578 (2006) (noting under a similar penalty provision if a violation occurred the trial court was required to impose a fine and subsequent compliance was not an affirmative defense); City of Chicago v. Cotton, 356 Ill. App. 3d 1, 7, 826 N.E.2d 405, 410 (2005) (the trial court was required to assess a daily fine within the statutory range after finding a violation occurred); City of McHenry v. Suvada, 396 Ill. App. 3d 971, 982, 920 N.E.2d 1173, 1183 (2009)...
  • City of McHenry v. Suvada
    • United States
    • United States Appellate Court of Illinois
    • Junio 16, 2011
    ...added.) The City argues that Suvada actually continued to be in violation until somewhere between August 25 and September 3, 2008, when the building was fully repaired and ready for occupancy. The City argues that City of Chicago v. Cotton, 356 Ill. App. 3d 1 (2005), and Old Colony, each involving a penalty provision similar to section 7—30(a) at issue here, support a finding that Suvada must be fined until the property is fully repaired and ready for occupancy. If Suvadathe building code for a periodof 20 days when she failed to provide gas service to her tenants. Cotton, 356 Ill. App. 3d at 2. That she provided her tenants with gas service on day 21 did not vitiate her fine for days 1 through 20. Id. at 4-7. Indeed, in our first opinion, we rejected the notion that a defendant who violates the building code for a period, yet subsequently complies prior to the hearing on the complaint, is no longer subject to any fine. Suvada, 396taken a significant step toward repair and continues to repair the building in a diligent manner. Although our analysis of the language in the building code requirements is dispositive, we address the City's argument that Cotton and Old Colony support a finding that section 7—30(a) mandates a fine until the property is fully repaired and ready for occupancy. The City's reliance on Old Colony, 364 Ill. App. 3d at 818, and Cotton, 356 Ill. App. 3d at 4-7,...
  • Sulayman v. Recine
    • United States
    • United States Appellate Court of Illinois
    • Septiembre 30, 2015
    ...guise of construction, reads new provisions into it to remedy omissions the court may perceive." Department of Transportation, State of Illinois v. Lowderman, LLC, 367 Ill. App. 3d 502, 505 (2006); see City of Chicago v. Cotton, 356 Ill. App. 3d 1, 6 ("when a statute provides for certain penalties, without providing for additional judicial discretion, the courts will impose only those penalties provided"). Again, based on the language of the statute, defendant was not entitled...
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