Shachter v. City of Chicago

• Decision Date: 05 January 2012
• Docket Number: No. 1–10–3582.,1–10–3582.
• Citation: 962 N.E.2d 586,2011 IL App (1st) 103582,356 Ill.Dec. 901
• Parties: Jay F. SHACHTER, Plaintiff–Appellant, v. The CITY OF CHICAGO, a Municipal Corporation, The Department of Administrative Hearings, and The Department of Streets and Sanitation, Defendants–Appellees.
• Court: United States Appellate Court of Illinois

2011 IL App (1st) 103582

356 Ill.Dec. 901

962 N.E.2d 586

Jay F. SHACHTER, Plaintiff–Appellant,

v.The CITY OF CHICAGO, a Municipal Corporation, The Department of Administrative Hearings, and The Department of Streets and Sanitation, Defendants–Appellees.

No. 1–10–3582.

Appellate Court of Illinois, First District, First Division.

Dec. 5, 2011.Rehearing Denied Jan. 5, 2012.

Jay F. Shachter, Chicago, appellant pro se.

Mara S. Georges, Corporation Counsel (Benna Ruth Solomon, Myriam Zreczny Kasper, Stephen R. Patton, Suzanne M. Loose, Assistant Corporation Counsel, of counsel), for appellees.

OPINION

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

[356 Ill.Dec. 905] ¶ 1 This appeal arises out of an administrative proceeding in which plaintiff-appellant, Jay F. Shachter, was found to have violated two municipal ordinances involving the care of his property and the parkway outside his home. Plaintiff thereafter filed a complaint in the circuit court for administrative review and declaratory judgment against defendants-appellees, The City of Chicago, a municipal corporation (the city), the department of administrative hearings, and the department of streets and sanitation. In that complaint, plaintiff asserted a number of procedural and substantive challenges to the administrative proceedings, as well as constitutional challenges to the two municipal ordinances he was found to have violated. After having quashed plaintiff's subpoenas, denied plaintiff's request to present additional evidence, and denied a motion for substitution of judge, the circuit court affirmed the administrative findings and rejected plaintiff's constitutional challenges.

¶ 2 On appeal, plaintiff raises a number of challenges to both the administrative and circuit court proceedings, and also continues to press his constitutional challenges to the ordinances themselves. For the reasons that follow, we affirm.

¶ 3 I. BACKGROUND

¶ 4 On October 23, 2009, an officer of the city's department of streets and sanitation completed a written “ADMINISTRATIVE NOTICE OF ORDINANCE VIOLATION.” That notice of violation asserted that conditions on or near property plaintiff owned on the northwest side of Chicago caused him to be in violation of two provisions of the Chicago Municipal Code (municipal code). Specifically, the notice alleged that weeds on plaintiff's property were over ten inches tall and that plaintiff had failed to maintain the parkway in front of his property. These conditions were alleged to be in violation, respectively, of sections 7–28–120(a) and 10–32–050 of the city's municipal code. Chicago Municipal Code § 7–28–120(a) (amended Dec. 4, 2002) (weed ordinance), § 10–32–050 (amended July 10, 2002) (parkway ordinance). Finally, the notice indicated that an administrative hearing on these violations had been scheduled for November 24, 2009. This notice of violation was mailed to plaintiff on November 2, 2009.

¶ 5 The hearing was held as scheduled before an administrative law officer (ALO) sitting in the city's department of administrative hearings, environmental safety hearings division. Plaintiff appeared and was sworn in as a witness. The ALO thereafter recited the two violations as specified on the notice of violation, stated that the officer who had completed the notice of violation had also taken pictures of plaintiff's property and the parkway in front of plaintiff's property, and indicated that these photos had been provided to the ALO with attached descriptions. The ALO then stated that these photos and the officer's descriptions indicated that plaintiff's property and the parkway in front of his property contained overgrown weeds and grass, this situation was “attracting rodents,” and that plaintiff was a “repeat offender.” The ALO then entered the photos into the record, found that the city had stated a cause of action for the alleged violations, and asked plaintiff: “What's your defense? Tell me why this is not a violation.”

¶ 6 Plaintiff stated that he had a written motion to dismiss, which the ALO indicated he was not authorized to hear. This written motion is not contained in the record on appeal. Nevertheless, after plaintiff stated he did not want to waive any challenge he might later raise in the circuit court, he was allowed to read his motion into the record. The transcript indicates that plaintiff's motion asserted that the city had failed to provide him with proper notice of the administrative hearing because the name of the officer completing the notice of violation was not included on that document. The ALO denied this motion on the grounds that he was not authorized to hear such prehearing motions to dismiss.

¶ 7 Plaintiff then asked to see the “original complaint” filed in this case. The ALO indicated that this request was not relevant in light of the fact that he had already found that the city's written notice of violation and the photos, taken together, had stated a cause of action. The ALO then indicated that plaintiff could further pursue this issue before the circuit court.

¶ 8 Plaintiff thereafter presented a written request for a subpoena compelling the appearance and testimony of the officer who issued the notice of violation. The written motion was entered into the record and plaintiff was given an opportunity to support that motion with oral argument. In both the written motion and oral argument, plaintiff generally asserted that because what was or was not a “weed” was “inherently ambiguous and subjective,” and because he had a right to cross-examine witnesses pursuant to section 1–2.1–5(c) of the Illinois Municipal Code (65 ILCS 5/1–2.1–5(c) (West 2008)), “there is no other way the City's case can be made other than by having the person who took those photographs come in here and identity for your sake as well as for mine which of those plants he considers to be the weeds and which he does not.” The ALO denied this motion as well, finding a decision could be made upon the evidence already presented.

¶ 9 Plaintiff then made a number of substantive and constitutional arguments with respect to the alleged violation of the city's weed ordinance. Substantively, plaintiff argued that the weed ordinance did not specifically define what a weed actually was. Citing to dictionary definitions defining a weed as a plant “growing where you don't want it,” plaintiff argued that “[a]ll of the plants on my land are growing exactly where I want them.” He also testified that his land was well tended, it was “the best tended land on [his] block,” he tended the parkway as well, and other properties in the area were strewn with rubbish.

¶ 10 With respect to his constitutional arguments, plaintiff first argued that the weed ordinance was “fatally unspecific because it does not give the citizenry notice of what is and what is not prohibited.” Specifically, plaintiff argued that the ordinance did not “specify what a weed is.” Plaintiff then argued that the ordinance did not bear a rational relationship to any legitimate public purpose because: (1) the plants on his property were not noxious; and (2) nothing about the condition of his property contributed to any rodent problem. Plaintiff also argued that because the “right to property is a fundamental right guaranteed by the Illinois Constitution it must—the ordinance must not only satisfy the rational relationship test but it must also satisfy the strict scrutiny test.” Plaintiff finally argued that the ordinance had been arbitrarily enforced and that it also invited arbitrary enforcement.

¶ 11 Following plaintiff's argument, the ALO found that the alleged violations had been proven by a preponderance of the evidence and imposed a total of $300 in fines and $40 in administrative costs. Plaintiff's request to stay enforcement of this order was denied.

¶ 12 The following day, plaintiff filed a four-count complaint in the circuit court. The first count sought administrative review of the ALO's finding that he had violated the city's weed ordinance. That count included allegations that this ordinance: (1) was vague and subjective; (2) invited arbitrary enforcement; (3) had been arbitrarily enforced; (4) failed the “strict scrutiny” test because it limited the right to property in an overly broad manner; and (5) bore no rational relationship to any legitimate or intended public purpose. Count I also included allegations that: (1) the administrative hearing was conducted without proper notice; (2) plaintiff was denied his right to cross-examination at the hearing; (3) the city's case was improperly presented by an employee of the department of administrative hearings; and (4) the findings of fact at the administrative hearing were against the manifest weight of the evidence and contrary to law. Finally, count I sought reversal of the administrative finding with respect to the weed ordinance or a remand for further proceedings.

¶ 13 The second count of plaintiff's complaint specifically incorporated only the first five allegations discussed above and asked for a declaration that the city's weed ordinance was invalid. The third and fourth counts also sought administrative review and a declaratory judgment, respectively, and asserted nearly identical allegations with regard to the finding that plaintiff had violated the city's parkway ordinance. We do note that these two counts omitted any assertion that the parkway ordinance failed the “strict scrutiny” test or bore no rational relationship to any legitimate or intended public purpose.

¶ 14 In an order entered on February 1, 2010, defendants were granted leave to file their answer instanter, and plaintiff was ordered to file a written “specification of the errors relied upon for reversal” pursuant to section 3–108 of the Code of Civil Procedure (Code) (735 ILCS 5/3–108 (West 2008)). That order also granted defendants leave to file a written response to the specification of errors and continued...