Maschek v. City of Chi.

Decision Date11 December 2015
Docket NumberNo. 1–15–0520.,1–15–0520.
Citation46 N.E.3d 843
PartiesKenneth MASCHEK, Individually and on Behalf of All Other Similarly Situated, Plaintiff–Appellant, v. The CITY OF CHICAGO, a Municipal Corporation, Defendant–Appellee.
CourtUnited States Appellate Court of Illinois

46 N.E.3d 843

Kenneth MASCHEK, Individually and on Behalf of All Other Similarly Situated, Plaintiff–Appellant
The CITY OF CHICAGO, a Municipal Corporation, Defendant–Appellee.

No. 1–15–0520.

Appellate Court of Illinois, First District, Fifth Division.

Dec. 11, 2015.

46 N.E.3d 846

Myron Cherry, Jacie C. Zolna, and Alexandra L. Nickow, all of Myron M. Cherry & Associates LLC, Chicago, for appellant.

Stephen R. Patton, Corporation Counsel, Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, and Suzanne M. Loose, Assistant Corporation Counsel, of counsel), for appellee.


Justice GORDON delivered the judgment of the court, with opinion.

¶ 1 In this appeal, plaintiff Kenneth Maschek appeals the trial court's grant of defendant City of Chicago's (City's) motion to dismiss. In this case, plaintiff challenged a traffic ticket, on the ground that the ticket was the result of an automated speed enforcement (ASE) camera operating near Lane Tech College Prep High School (Lane Tech) and that the law governing ASE cameras prohibited the City from operating an ASE camera near a school on that day. 625 ILCS 5/11–208.8(a–5) (West 2012) (ASE law).

¶ 2 The ASE law governs the conduct of the City but not the driver. The ASE law dictates when the City can and cannot operate ASE cameras. However, drivers must still conform to the law, whether or not an ASE camera is running. The speed limit for a vehicle in this City is 30 miles per hour,1 and plaintiff does not contest the fact that he was 11 miles per hour over this limit.

46 N.E.3d 847

¶ 3 In addition, plaintiff paid the ticket and did not challenge the underlying speeding violation. Thus, he waived for our consideration whether he was or was not violating the law. On this appeal, he does not argue that he was obeying the law, but argues only that, even if he was violating the law, the City was not allowed to use an ASE camera to catch him.2

¶ 4 Plaintiff argues that ASE cameras are allowed to operate only on school days, that summer school days are not school days, and thus the City was not allowed to issue an ASE-based ticket on June 26, 2014, the day he was speeding. Plaintiff does not contest that this day was a scheduled class day for special needs children at Lane Tech.

¶ 5 Special needs children have an extended school year, such that a regularly scheduled school day for them included June 26, 2014, at Lane Tech. See infra ¶¶ 74–76; 105 ILCS 5/14–13.01(b) (West 2014) (providing for up to “235 school days”). Although plaintiff raises arguments about the “school year” and the “school calendar,” the operative phrase in the ASE law is “school day [ ]”, and a school day for a special needs child is defined as a day that he or she is “in attendance at school for instructional purposes.” 34 C.F.R. § 300.11(c)(1), (2) (2014) ; 23 Ill. Admin. Code 226.75 (2007) (adopting this definition for Illinois).

¶ 6 Plaintiff engages in a number of hypotheticals—what if at another school, the math team was meeting on a Saturday—would that count as a school day? However, that is not the case in front of us. In the case in front of us, plaintiff was issued a ticket near a school where special needs children were attending regularly scheduled classes.

¶ 7 Plaintiff argues how will a driver be on notice when he or she should slow down. The ASE law, as applied to and argued by plaintiff, concerns enforcement only, i.e., when may the City use automatic cameras to catch violators. However, the violation occurred whether or not the ASE camera was operating. The law governing plaintiff's behavior was still in effect, whether or not the ASE camera was running, and that law provided for a 30–mile per hour speed limit. A driver does not have to be on notice about when he is most likely to be caught.

¶ 8 Since the days of the horse and buggy, long before there were ASE cameras, drivers knew to slow down near a school. Society benefits if drivers have an automatic, knee-jerk reaction—see a school, slow down. Even when classes are not in session, children have a tendency to gather and play on the amenities which schools often provide, such as basketball courts and open spaces. Encouraging drivers to slow down furthers the safety of children, whether or not the drivers are caught. This “slow down” is specifically what the sponsor of the ASE bill claimed as a safety benefit, which benefits society as a whole. See 97th Ill. Gen. Assem., House Proceedings, Nov. 9, 2011, at 131.

¶ 9 Plaintiff argues that there were only 70 students at the school, and 70 children is not enough to matter, when you consider the overall population of that particular school. However, he does not state how many children it does take to matter, and neither did the legislature. The law is phrased in terms of a school day, not in terms of numbers of children or percentages

46 N.E.3d 848

at a particular school. The law applies to even the smallest primary school in Chicago.

¶ 10 For these reasons and the reasons which we discuss below, we find that “school days” includes the special education classes which were in session at Lane Tech on June 26, 2014, and we affirm. Since special needs children were in school on June 26, 2014, at Lane Tech, we need not make a determination with respect to the other classes in session.


¶ 12 I. The Complaint

¶ 13 On October 31, 2014, plaintiff filed a complaint which alleged that he received a $100 speeding ticket as the result of the operation of an ASE camera on June 26, 2014, and that he paid the fine. Plaintiff alleged that the camera was located in a “School Safety Zone at 2549 W. Addison St. which is adjacent to Lane Tech College Prep High School,” and that he was “the registered owner of the vehicle.” Plaintiff alleged that, on September 18, 2014, the City of Chicago issued a press release stating that ASE “ ‘enforcement hours will be limited from 7 a.m. to 7 p.m. in safety zones around schools on school days (Monday through Friday).’ ” Plaintiff claimed that the regular academic year had already ended and would not begin again until September 2, 2014, and thus the City was not allowed to operate an ASE camera on Thursday, June 26, 2014. Plaintiff sought class certification and brought counts for declaratory judgment, injunction, unjust enrichment and fraud.

¶ 14 II. Defendant's Motion to Dismiss

¶ 15 On December 17, 2014, defendant City of Chicago moved to dismiss plaintiff's complaint pursuant to section 2–619(a)(9) of the Code of Civil Procedure on the ground that plaintiff's claims were barred by an “affirmative matter avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2–619(a)(9) (West 2014).

¶ 16 Defendant argued: “In short, Plaintiff challenges the authority of the City to cite his vehicle for travelling 41 miles per hour in a 30 mile per hour zone adjacent to Lane Tech * * * at 5:26 p.m. on June 26, 2014, using [ASE] cameras because Plaintiff believes that June 26, 2014, was not a ‘school day.’ The City is only authorized to use ASE cameras adjacent to schools on ‘school days.’ ”

¶ 17 Defendant further argued: “All of Plaintiff's claims fail because it is an easily proved issue of fact that classes were in session at Lane Tech on June 26, 2014, and accordingly June 26, 2014, was a school day at Lane Tech.”

¶ 18 Defendant also argued (1) that plaintiff lacked standing to claim that he had been issued a ticket not authorized by law, since that had not happened to him; (2) that he had failed to exhaust his administrative remedies, since he voluntarily paid the ticket; and (3) that the Tort Immunity Act barred plaintiff's fraud claim. 745 ILCS 10/2–107 (West 2014).

¶ 19 Defendant attached exhibits which included a copy of the ticket mailed to plaintiff. The ticket, which was entitled an “Automated Speed Enforcement Violation,” informed plaintiff that he had 14 days, or until July 27, 2014, to pay $100, or contest the ticket by mail, or request an in-person hearing. The ticket listed the “Violation Code” as “9101020* *,” which the City's website explains is for speeding 11 miles per hour or more over the speed limit and is subject to a $100 fine. (from a list of “speed violations that can be issued,” current as of April 2014). The ticket listed the “Description” of the violation as a

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“Speed Violation 11+,” for traveling 11 miles or more over the speed limit, and it stated that the vehicle was traveling 41 miles per hour. The ticket also described the violation as occurring on July 26, 2014, at 5:26 p.m., in a “School Safety Zone.”3

¶ 20 Defendant's attached exhibits also included the affidavit of Nancy Quintana, the Executive Director of Instructional Support for the Board of Education of the City of Chicago who swore, in relevant part, that:

“5. During the summer of 2014, classes were held and students were present at Lane Tech on Mondays, Tuesdays, Wednesdays, and Thursdays from June 23, 2014 until July 31, 2014.
6. June 26, 2014, was a

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