Stone St. Partners, LLC v. City of Chi.

• Decision Date: 08 December 2017
• Docket Number: No. 1–13–3159,1–13–3159
• Citation: 91 N.E.3d 965,2017 IL App (1st) 133159
• Parties: STONE STREET PARTNERS, LLC, a/k/a PMD, Individually and on Behalf of All Others Similarly Situated, Plaintiff–Appellant, v. The CITY OF CHICAGO, The City of Chicago Department of Administrative Hearings, Patricia Jackowiak, Director, Department of Administrative Hearings; The City of Chicago Department of Streets and Sanitation; Thomas G. Byrne, Commissioner of the City of Chicago Department of Streets and Sanitation, Defendants–Appellees.
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 133159

91 N.E.3d 965

STONE STREET PARTNERS, LLC, a/k/a PMD, Individually and on Behalf of All Others Similarly Situated, Plaintiff–Appellant,

v.The CITY OF CHICAGO, The City of Chicago Department of Administrative Hearings, Patricia Jackowiak, Director, Department of Administrative Hearings; The City of Chicago Department of Streets and Sanitation; Thomas G. Byrne, Commissioner of the City of Chicago Department of Streets and Sanitation, Defendants–Appellees.

No. 1–13–3159

Appellate Court of Illinois, First District, SIXTH DIVISION.

December 8, 2017

Linden & Bustamante (Richard F. Linden and Peter V. Bustamante, of counsel), and Katten & Temple LLC (Michael B. Katten and Joshua R. Diller, of counsel), both of Chicago, for appellant.

Edward N. Siskel, Corporation Counsel, of Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, and Jonathon D. Bryer, Assistant Corporation Counsel, of counsel), for appellees.

OPINION

JUSTICE DELORT delivered the judgment of the court, with opinion.

¶ 1 In an earlier case, Stone Street Partners, LLC (Stone Street), challenged certain practices of the City of Chicago Department of Administrative Hearings (Department). See Stone Street Partners, LLC v. City of Chicago Department of Administrative Hearings , 2017 IL 117720, 417 Ill.Dec. 547, 88 N.E.3d 699. Stone Street won a partial victory, and the judgment against it was vacated. In this appeal, stemming from a different citation which the City of Chicago (City) issued, Stone Street presents other challenges to the Department's practices. The circuit court rejected these challenges. We affirm.

¶ 2 BACKGROUND

¶ 3 On January 17, 2012, the City of Chicago Department of Streets and Sanitation (DSS) issued an administrative notice of ordinance violation against an entity named PMD regarding property located at 34 East Oak Street in Chicago.¹ The notice stated: "[i]mproperly contained refuse exist [sic ] at this location." It alleged that Stone Street violated section 7–28–261 of the Chicago Municipal Code, which provides:

"(a) No person shall deposit refuse in a standard or commercial refuse container, or compactor, in a manner that prevents complete closure of the container's cover, or deposit refuse on top of a container in a manner that interferes with opening of the container, or pile or stack refuse against a container.

(b) The owner, his agent or occupant of a property shall not allow any person to violate subsection (a) of this section. The presence of refuse preventing complete closure of the container's cover, deposited on or piled or stacked against a standard refuse container, a commercial refuse container, or compactor shall be prima facie evidence of violation of this subsection (b).

(c) Any person who violates any provision of this section shall be fined not less than $200.00 and not more than $500.00 for each offense. Each day that a violation continues shall constitute a separate and distinct offense." Chicago Municipal Code § 7–28–261 (amended July 7, 1999).

¶ 4 On February 23, 2012, an attorney for Stone Street appeared before the Department to contest the notice. According to Stone Street's complaint, before the hearing began, Pamela Harris, the administrative law judge (ALJ) who heard Stone Street's case,

"stated to everyone in the courtroom that no representative from the City was available to discuss or pre-try the cases. ALJ Harris stated that she had the authority to impose the minimum penalty permitted under the Municipal Code should anyone plead liable to the charges. ALJ Harris indicated in no uncertain terms that a trial tax would be imposed if anyone exercised their rights to a hearing and was found guilty. ALJ Harris made it clear to the entire courtroom that they would not receive the minimum fine if they proceeded to a hearing and were found guilty."

¶ 5 When Stone Street's hearing commenced, the ALJ tendered two photographs to Stone Street's attorney depicting a trash can bearing the letters "PMD" that was so filled with garbage that the lid could not close. The attorney objected to the introduction of these photographs on the basis that the City failed to produce them in response to a Freedom of Information Act request he had propounded on the City before the hearing. The ALJ admitted the photographs into evidence over this objection and found that the City had established a prima facie case of an ordinance violation.

¶ 6 In response, Stone Street's attorney objected to the entire proceeding on the basis that the City was engaging in the unauthorized practice of law because no attorney appeared for the City. The ALJ rejected this argument and found Stone Street liable. The ALJ then assessed a $300 fine, which was $100 more than the minimum, and a $40 fee and entered judgment against Stone Street for $340. Stone Street's complaint does not allege that its attorney specifically objected to the imposition of a fine greater than $200.

¶ 7 On March 26, 2012, Stone Street filed a four-count "Class Action & Administrative Review Complaint." The complaint alleged generally that the City "filed, appeared, and prosecuted" the case against Stone Street "without a licensed attorney in violation of Illinois law." It further alleged that, because the City "appeared and prosecuted the case without an attorney, the proceedings are null and void as a matter of law." According to Stone Street, "[t]he City's policy and practice of prosecuting these types of cases without a licensed attorney has affected, and continues to affect, thousands of individuals and entities."

¶ 8 In count I, Stone Street sought declaratory and injunctive relief "invalidating all fines, penalties, orders and judgments where the city appeared without a licensed attorney" on behalf of a class. Stone Street also sought a declaration that "the City of Chicago's practice of permitting an ALJ to act as both judge and prosecutor" violated its right to due process under the federal and Illinois constitutions.

¶ 9 In count II, Stone Street alleged that the ALJ who heard Stone Street's case stated that, while she was authorized to impose the minimum fine on anyone who entered a plea to liability, she would impose what Stone Street characterized as a "trial tax" by imposing more than the minimum fine on anyone who opted to proceed with a contested hearing. Stone Street requested a declaration that "the custom and practice of penalizing litigants for exercising their right to a contested hearing violates due process" and "[i]njunctive relief requiring that this practice cease and desist."

¶ 10 Count III was a claim under the Freedom of Information Act, 5 ILCS 140/1 et seq. (West 2012). Count IV was a complaint for administrative review of the Department's decision.

¶ 11 On September 11, 2012, defendants filed a motion to dismiss counts I, II, and III pursuant to section 2–619.1 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2–619.1 (West 2012) ). After a hearing, the court dismissed count II, finding that Stone Street failed to state a "cognizable claim for violation of due process." In reaching that conclusion, the court drew an analogy between the ALJ's statements and the plea bargaining process in a criminal case, stating:

"[I]t happens everyday * * * that some judge somewhere in this County is saying to a defendant if you plead guilty I will give you probation. However, if you go to trial, Mr. Defendant, * * * probation is off the table. That is perfectly acceptable and it happens everyday in this County. * * * In this particular instancethe ALJ indicated that if one accepts responsibility and admits to a violation, * * * it was her habit to give the minimum fine. * * * However, she says if there is a finding that you violated, then I'm not going to give you the minimum fine. And I don't think that to be a [violation] of one's due process right."

With respect to count I, the court stated, "I just don't see this as the unauthorized practice of law. I just think that we really don't have a justiciable declaratory action here." At the conclusion of the hearing, the court dismissed counts I and II with prejudice. The same day, Stone Street withdrew count III.

¶ 12 Count IV, Stone Street's claim for administrative review, remained pending. On August 14, 2013, the circuit court resolved that claim by denying Stone Street's petition for administrative review and affirming the ALJ's finding of liability as to the ordinance violation. This appeal followed.

¶ 13 ANALYSIS

¶ 14 Although defendants filed a combined motion to dismiss pursuant to section 2–619.1 of the Code, the parties agree—and the record confirms—that the circuit court dismissed counts I and II for failure to state a cause of action pursuant to section 2–615 of the Code. See 735 ILCS 5/2–615, 2–619.1 (West 2012)). A section 2–615 motion challenges the legal sufficiency of the complaint. Ferris, Thompson & Zweig, Ltd. v. Esposito , 2017 IL 121297, ¶ 5, 418 Ill.Dec. 242, 90 N.E.3d 400. "When reviewing whether a motion to dismiss under section 2–615 should have been granted, we accept as true all well-pleaded facts and all reasonable inferences that may be drawn from those facts." Id. "The critical inquiry is whether the allegations of the complaint, when considered in a light favorable to the plaintiff, are sufficient to state a cause of action upon which relief may be granted." Schweihs v. Chase Home Finance, LLC , 2016 IL 120041, ¶ 27, 412 Ill.Dec. 882, 77 N.E.3d 50. We review a circuit court's dismissal of a complaint pursuant to section 2–615de novo . Id.

¶ 15 We first consider whether the court properly dismissed count I, which sought a declaratory judgment that (1) the City engaged in the unauthorized practice of law by not having an attorney present to prosecute ordinance violations at hearings before the Department and (2) as a result, any and all fines that were imposed as a result of such hearings were null and void. In addition, Stone Street contends, as a corollary to this claim, that...