Potek v. City of Chi.

• Docket Number: 1-21-1286
• Decision Date: 07 September 2022
• Citation: 2022 IL App (1st) 211286,217 N.E.3d 192,466 Ill.Dec. 365
• Parties: Aaron POTEK, Adina Klein, Stephen Michelini, and Luke Sequeira, Individually and on Behalf of All Others Similarly Situated, Plaintiffs-Appellants, v. The CITY OF CHICAGO, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

2022 IL App (1st) 211286

217 N.E.3d 192

466 Ill.Dec. 365

Aaron POTEK, Adina Klein, Stephen Michelini, and Luke Sequeira, Individually and on Behalf of All Others Similarly Situated, Plaintiffs-Appellants,

v.The CITY OF CHICAGO, Defendant-Appellee.

No. 1-21-1286

Appellate Court of Illinois, First District, Third Division.

September 7, 2022

Myron M. Cherry, Jacie C. Zolna, Benjamin R. Swetland, Jerimiah W. Nixon, and Jessica C. Chavin, of Myron M. Cherry & Associates, LLC, of Chicago, for appellants.

Celia Meza, CorporationCounsel, of Chicago (Myriam Zreczny Kasper, and Suzanne M. Loose, Assistant CorporationCounsel, and J. David Duffy, Robert J. Wagner, and Patrick Morales-Doyle, of Thompson Coburn LLP, Special Assistant CorporationCounsel, of counsel), for appellee.

JUSTICE REYESdelivered the judgment of the court, with opinion.

¶ 1 Between 2012 and 2014, plaintiffs Rabbi Aaron Potek, Adina Klein, Stephen Michelini, and Luke Sequeira all received "Administrative Notice[s] of Ordinance Violation[s]"(violation notices) from the City of Chicago(City) for using cell phones while driving, a violation of a City ordinance.These violation notices were administratively adjudicated by the City's Department of Administrative Hearings(DOAH), and three of the plaintiffs paid their fines, while the fourth never paid.All four plaintiffs had findings of liability entered against them by the DOAH.In 2017, plaintiffs filed suit against the City, alleging that the DOAH lacked subject-matter jurisdiction to adjudicate the ordinance violations and, therefore, the findings of liability against them were void.The City filed a motion for summary judgment, which the circuit court granted, finding that plaintiffs lacked standing to challenge the City's use of the DOAH to adjudicate the violations.Plaintiffs appeal, and for the reasons that follow, we affirm in part and reverse in part.

¶ 2 BACKGROUND

¶ 3City Ordinance

¶ 4 Since 2005, the City's traffic code has contained an ordinance prohibiting the use of cell phones while driving.The ordinance at issue provides that "no person shall drive a motor vehicle while using a mobile, cellular, analog wireless or digital telephone."Chicago Municipal Code§ 9-76-230(a)(amended Nov. 17, 2021).¹The ordinance further clarifies that "using" the device includes, but is not limited to, (1) talking or listening to another person on the telephone, (2) text messaging, (3) sending, reading, or listening to an electronic message, or (4) browsing the Internet.Id.The prohibition against using such devices does not apply to (1) law enforcement officers and operators of emergency vehicles when on duty and acting in their official capacities, (2)people using a telephone hands-free, (3)people using a telephone to call 911 or other emergency telephone numbers, and (4)people using a telephone while maintaining the motor vehicle in a stationary parked position and not in gear.Id.§ 9-76-230(b).

¶ 5 A driver who violates section 9-76-230 is subject to a fine between $90 and $500 for each offense.Chicago Municipal Code§ 9-4-020(amended Nov. 5, 2008).If the violation occurs at the time of a traffic crash, the driver may be subject to an additional $500 fine.Chicago Municipal Code§ 9-76-230(c)(amended Nov. 17, 2021).

¶ 6Illinois Vehicle Code

¶ 7 The use of "[e]lectronic communication devices" is also governed by the Illinois Vehicle Code. 625 ILCS 5/12-610.2(West 2010).In 2010, the legislature enacted a prohibition against operating a motor vehicle on a roadway while "using an electronic communication device to compose, send, or read an electronic message."Id.§ 12-610.2(b).An " ‘[e]lectronic communication device’ " was defined to include "a wireless telephone, personal digital assistant, or a portable or mobile computer while being used for the purpose of composing, reading, or sending an electronic message."Id.§ 12-610.2(a).An " ‘[e]lectronic message’ " was defined to include e-mail, text messages, instant messages, or commands or requests to access the internet.Id.Section 12-610.2 included exceptions for (1) law enforcement officers or operators of emergency vehicles while performing their official duties, (2) drivers using such devices for the sole purpose of reporting an emergency situation and continued communication with emergency personnel during the emergency situation, (3) drivers using such devices in hands-free or voice-activated mode, (4) drivers of commercial motor vehicles reading messages displayed on certain permanently installed communication devices, (5) drivers using such devices while parked on the shoulder of a roadway, and (6) drivers using such devices when the vehicle is stopped in traffic and the vehicle is in neutral or park.Id.§ 12-610.2(d).

¶ 8 In 2014, the legislature expanded the scope of section 12-610.2, amending the statute to provide that a person may not operate a motor vehicle on a roadway "while using an electronic communication device."625 ILCS 5/12-610.2(b)(West 2014).The amended statute also expanded the list of exceptions to include (1) a driver using two-way or citizens band radio services, (2) a driver using two-way mobile radio transmitters or receivers for licensees of the Federal Communications Commission in the amateur radio service, (3) a driver using an electronic communication device by pressing a single button to initiate or terminate a voice communication, and (4) a driver using an electronic communication device capable of performing multiple functions, other than a handheld wireless telephone or personal digital assistant, for a purpose that is not prohibited by the statute.Id.§ 12-610.2(d).

¶ 9 Whenever a person is convicted of any offense under the Vehicle Code"or similar offenses under a municipal ordinance"(subject to certain exceptions not relevant in the instant case), the clerk of the court in which such conviction occurs must forward a report of the conviction to the Secretary of State within five days.Id.§ 6-204(a)(2).These records allow the office of the Secretary of State to perform its duties to cancel, revoke, or suspend drivers’ licenses where appropriate.Id.§ 6-204(a).

¶ 10Adjudication of Ordinance Violations

¶ 11 Under the Illinois Municipal Code, any municipality may provide for a system of administrative adjudication of municipal code ordinances to the extent permitted by the Illinois Constitution.65 ILCS 5/1-2.1-2(West 2020).The Illinois Municipal Code, however, defines a " ‘system of administrative adjudication’ " as the adjudication of any violation of a municipal ordinance except for (1) proceedings not within the statutory or home rule authority of municipalities and (2)"any offense under the Illinois Vehicle Code or a similar offense that is a traffic regulation governing the movement of vehicles and except for any reportable offense under Section 6-204 of the Illinois Vehicle Code."Id.

¶ 12 With respect to the City, the DOAH is responsible for administratively adjudicating certain traffic-related offenses.SeeChicago Municipal Code§ 9-100-010(amended Oct. 28, 2015).A person who has received a violation notice has two options: (1) pay the indicated fine or (2) request an administrative adjudication to contest the charged violation.Chicago Municipal Code§ 9-100-050(a)(amended Oct. 27, 2021).²If a person requests an administrative hearing, after such hearing, the administrative law officer enters a determination of liability or no liability and that determination is a final determination for purposes of judicial review.Chicago Municipal Code§ 9-100-070(d)(amended Oct. 28, 2015);Chicago Municipal Code§ 9-100-090(a)(amended Oct. 28, 2015).If a person fails to respond to the violation notice, a determination of liability is entered against him or her.³Chicago Municipal Code§ 9-100-090(b)(amended Oct. 28, 2015).

¶ 13 The City does not dispute that until August 2015, including during the time of plaintiffs’ alleged offenses, violations of section 9-76-230 were administratively adjudicated by the DOAH under these procedures.In February 2015, the plaintiff in a federal lawsuit against the City alleged that the City was not permitted to administratively adjudicate violations of section 9-76-230.⁴In August 2015, "pursuant to the advice of counsel," the City began issuing "Personal Service Citations" for violations of section 9-76-230, which were adjudicated in the circuit court of Cook County instead of in the DOAH, and no longer prosecuted such violations in the DOAH.⁵Additionally, in 2017, the City placed any indebtedness due to violations of the ordinance in "Collection Hold" status; while the debts are still owed by the debtors, the City is not restricting any privileges based on the violations.

¶ 14Plaintiffs’ Offenses

¶ 15 The four named plaintiffs in the instant case all received violation notices for use of a cell phone while driving during the period of time in which violations were adjudicated by the DOAH and took different approaches to addressing the violations.

¶ 16PlaintiffLuke Sequeira received a violation notice after a police officer stopped his vehicle on May 9, 2012.Sequeira admitted in his deposition that he was holding his cell phone in his hand and talking on it at the time.The violation was scheduled for an administrative hearing at the DOAH on June 8, 2012.He did not appear at the hearing, and the DOAH entered a "Findings, Decision & Order" reflecting a finding of "Default—Liable by prove-up" and imposing a $500 fine.On July 20, 2012, Sequeira appeared at the DOAH and moved to set aside the default; the DOAH entered a "Findings, Decision & Order" granting the motion, vacating the default, and continuing the proceedings to July 30, 2012.On that date, Sequeira appeared at the DOAH and sought another continuance, which was granted.The "Findings, Decision & Order" continued the proceedings to August 27, 2012.Sequeira did not appear before the DOAH on August...