Simic v. City of Chi.

• Decision Date: 20 March 2017
• Docket Number: No. 15-2496,15-2496
• Parties: Tamara SIMIC, Plaintiff-Appellant, v. CITY OF CHICAGO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

851 F.3d 734

Tamara SIMIC, Plaintiff-Appellant,

v.CITY OF CHICAGO, Defendant-Appellee.

No. 15-2496

United States Court of Appeals, Seventh Circuit.

Argued February 16, 2016

Decided March 20, 2017

Ilia Usharovich, Attorney, Wheeling, IL, for Plaintiff-Appellant.

Irina Y. Dmitrieva, Attorney, Office of the Corporation Counsel, Appeals Division, Chicago, IL, for Defendant-Appellee.

Before Posner, Williams, and Hamilton, Circuit Judges.

Hamilton, Circuit Judge.

On November 7, 2014, plaintiff Tamara Simic was driving in Chicago and texting on her cell phone. A police officer issued her a ticket because texting while driving violates a Chicago ordinance. Simic failed to pay the ticket, and the City took steps to collect a fine. Simic then sued the City, claiming that the ordinance is unconstitutional. She moved for a preliminary injunction to halt enforcement of the ordinance throughout Chicago, but the City then non-suited its case against her. The district court denied Simic's motion for an injunction, and Simic has appealed.

We affirm the district court's denial of Simic's motion for a preliminary injunction for two reasons. Simic did not face any threat of irreparable harm. Also, without assessing her likelihood of success on the merits of her constitutional arguments, it appears that Simic lacks Article III standing for the relief she seeks. Once our mandate issues, the district court should consider dismissing Simic's lawsuit for lack of jurisdiction.

I. Factual and Procedural Background

A 2005 Chicago ordinance prohibits drivers from using handheld mobile telephones while operating their vehicles. Chic. Mun. Code § 9-76-230. On November 7, 2014 a Chicago police officer ticketed Simic for violating the ordinance. The ticket directed Simic to appear for a hearing or to pay a $100 fine by mail. Simic did neither. The Chicago Department of Administrative Hearings entered a default judgment against her for $540. As the ticket had warned, $500 was the maximum fine for Simic's infraction and $40 was for administrative costs.

Simic did not dispute that she was texting while driving; instead she challenged the constitutionality of the Chicago ordinance. She sued the City on January 3, 2015, seeking declaratory and injunctive relief and monetary damages in excess of one million dollars. She alleged that Chicago's cell phone ordinance violates the Fourteenth Amendment's Due Process Clause and the Eighth Amendment's Excessive Fines Clause. She also alleged several state-law claims and sought certification of a plaintiff class.

Simic's main theory is that the ordinance somehow violates the United States Constitution because it exceeds the powers the State of Illinois has granted to the City of Chicago. Illinois prevents municipalities from creating ordinances regarding certain traffic offenses, such as those offenses in the Illinois Vehicle Code. See 65 ILCS 5/1-2.1-2. The Illinois Vehicle Code contains a prohibition on cell phone use while driving. 625 ILCS 5/12-610.2 (prohibiting a person from operating "a motor vehicle on a roadway while using an electronic communication device"). Simic argues that Chicago's cell phone ordinance is preempted by the Illinois statute. See Catom Trucking, Inc. v. Chicago , 351 Ill.Dec. 797, 952 N.E.2d 170, 175–76 (2011) (holding city could not enforce through administrative adjudication a city ordinance limiting vehicle weight). The Illinois statute on cell phone use while driving caps the amount a driver may be fined: "A person who violates this Section shall be fined a maximum of $75 for a first offense, $100 for a second offense, $125 for a third offense, and $150 for a fourth or subsequent offense." Id.

How such an issue of state law presents a federal constitutional issue remains something of a mystery. Simic's theory seems to be that Chicago's fines are both "excessive and disproportionate to the gravity of the offense" and imposed without authority under state law, from which she concludes that the city's fines violate the Excessive Fines Clause of the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment. As explained below, however, Simic's case runs into trouble at the preliminary level of standing.

On January 23, 2015, after Simic filed her motion for a preliminary injunction, the Department granted Simic's motion to set aside the default judgment in her state case and continued her case until March 11, 2015. On May 18, after several agreed continuances, the city non-suited the administrative proceeding. Simic never paid any money for violating the Chicago ordinance, and she is no longer liable for the fine.

On June 24, 2015, the district court denied Simic's motion for a preliminary injunction because she failed to show a threat of irreparable injury and because her prospects for success on the merits were "doubtful." There was no threat of irreparable harm because "the very nature of Simic's claim that the $500 fine is excessive necessarily means that her complaints can be remedied by monetary damages, and thus, there exists an adequate remedy at law." Simic was unlikely to prevail on the merits, the court said, because Chicago is a home rule unit of government so that state law does not preempt the ordinance. Simic appealed the denial of an injunction.

II. Analysis

We have jurisdiction under 28 U.S.C. § 1292(a)(1) to review the district court's denial of a preliminary injunction. We affirm the denial. The district court correctly found that Simic failed to show any threat of irreparable harm, and we agree with the court's explanation. At worst, Simic faced the threat of a $540 assessment as a fine and court costs, so a damages remedy would be sufficient to remedy any harm. In addition, without delving further into the merits of her constitutional claim, it is apparent that Simic lacks standing to assert her federal claims, meaning that subject matter jurisdiction is lacking. A district court has jurisdiction to decide its jurisdiction, so it can address a motion for a preliminary injunction without making a conclusive decision about whether it has subject matter jurisdiction. Yet issues of subject matter jurisdiction are always on the table in federal courts, including appeals from grants or denials of preliminary injunctions. See Munaf v. Ge r en , 553 U.S. 674, 691, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008). Simic does not have standing to seek injunctive relief, and she seems unable to show any injury in fact to support her claim for damages.

A. Standing to Seek Injunctive Relief

To invoke federal jurisdiction, Simic must have standing, which is a short-hand term for the right to seek judicial relief for an alleged injury. See Susan B. Anthony List v. Driehaus , 573 U.S. ----, ––––, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014). To have standing, a plaintiff must allege and ultimately show: (1) an injury in fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3) a likelihood that the injury will be redressed by a favorable decision. Id. A plaintiff bears the burden of showing that she has standing for each form of relief sought. Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. , 528 U.S. 167, 185, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). For Simic's case to survive, she must show that she has standing to seek either injunctive relief or damages, or both.

To have standing for prospective injunctive relief, a plaintiff must face a "real and immediate" threat of future injury as opposed to a threat that is merely "conjectural or hypothetical." City of Los Angeles v. Lyons , 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (internal quotation marks omitted); see also S i erak o wski v. Ry a n , 223 F.3d 440, 444–45 (7th Cir. 2000). Unlike with damages, a past injury alone is insufficient to establish standing for purposes of prospective injunctive relief: "Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects." Lyons , 461 U.S. at 95–96, 103 S.Ct. 1660, citing O'Shea v. Littleton , 414 U.S. 488, 495–96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974).

Simic's claimed threat of future injury is conjectural. The threat is contingent upon her once again driving while using her cell phone and receiving a citation under the Chicago ordinance. This hypothetical scenario would also require her to violate a separate law that she does not challenge—the Illinois statute that prohibits using cell phones while driving. 625 ILCS 5/12-610.2.

For purposes of standing to seek injunctive relief against future harm, courts generally assume that litigants "will conduct their activities within the law and so avoid prosecution and conviction." O'Shea , 414 U.S. at 497, 94 S.Ct. 669. That assumption surely holds with respect to obeying laws that are not themselves the target of a party's constitutional challenge, as was the case in O'Shea and is the case here.

We hope, and in any event we must assume, that Simic does not have concrete plans to violate Illinois law by using her cell phone while driving in Chicago. That fact undermines her standing to seek injunctive relief. "General assertions or inferences that in the course of their activities respondents will be prosecuted for violating valid criminal laws" cannot form the basis for allegations of real and immediate future injury sufficient to confer standing. O'Shea , 414 U.S. at 497, 94 S.Ct. 669 ; see also Lyons , 461 U.S. at 109–10, 103 S.Ct. 1660 (plaintiff lacked standing to seek injunction against future police use of chokehold; he could only speculate that he would be subjected to illegal chokehold again in course of possible future confrontation with police).

If Simic were claiming a constitutional right to drive while using her cell phone, our...