Village of Glenview v. Zwick, 1-03-2446.

• Decision Date: 31 March 2005
• Docket Number: No. 1-03-2446.,1-03-2446.
• Citation: 292 Ill.Dec. 735,826 N.E.2d 1171,356 Ill. App.3d 630
• Parties: The VILLAGE OF GLENVIEW, an Illinois Home Rule Municipal Corporation, Plaintiff-Appellant and Cross-Appellee, v. Michael ZWICK, Defendant-Appellee and Cross-Appellant.
• Court: United States Appellate Court of Illinois

826 N.E.2d 1171

356 Ill. App.3d 630

292 Ill.Dec. 735

The VILLAGE OF GLENVIEW, an Illinois Home Rule Municipal Corporation, Plaintiff-Appellant and Cross-Appellee, v. Michael ZWICK, Defendant-Appellee and Cross-Appellant.

No. 1-03-2446.

Appellate Court of Illinois, First District, Second Division.

March 31, 2005.

Robbins, Salomon & Patt, Ltd., Chicago (Jeffery M. Randall; Richard Lee Stavins; Eric G. Patt and Thomas K. Tryboski, of counsel), for Plaintiff-Appellant-Village of Glenview.

Justice GARCIA delivered the opinion of the court:

On March 14, 2002, the plaintiff, Village of Glenview (Glenview), filed a second-amended complaint against the defendant, Michael Zwick, alleging that in addition to refuse ordinance violations, it was entitled to recover attorney fees from Zwick based on section 1.13 of its municipal code. Glenview Municipal Code, ch. 1, § 1.13 (eff. June 21, 1994). Zwick moved to dismiss Glenview's petition for attorney fees. On July 10, 2003, the circuit court granted Zwick's motion to dismiss finding section 1.13 was "an impermissible use of Glenview's home-rule powers [Ill. Const. 1970, art. VII, § 6(a)] as it violates the `American Rule' regarding each party's responsibility for its own attorney[ ] fees."

Glenview appeals arguing that it may, pursuant to its home rule authority, constitutionally require an opposing party to pay its reasonable attorney fees when it is the successful party in litigation involving the enforcement or defense of a provision of its municipal code.

BACKGROUND

On March 14, 2002, Glenview filed a second-amended complaint against Zwick contending that from April 4, 2001, to March 8, 2002, and again on June 29, 2003, Zwick was issued 81 citations for repeated violations of its refuse ordinance. Glenview Municipal Code, ch. 9, §§ 9.28(d), 9.29(a), 9.29(g) (eff. February 6, 2001). Specifically, Glenview alleged that Zwick failed to place his garbage containers and recycling bins between the lot lines of his residence and failed to remove his garbage containers and recycling bins from the street by 7 p.m. on the date of service. In its second-amended complaint Glenview also sought attorney fees.

Following a bench trial, Zwick, a resident of Glenview, was found guilty of violating Glenview's refuse ordinance. The circuit court fined Zwick a total of $10,219.

Glenview then went forth on its claim for attorney fees seeking recovery in the amount of $36,079. In support of this claim, Glenview relied on section 1.13 of its municipal code, which states:

"If the Village proceeds in any court of record to enforce and/or defend any provisions of the Municipal Code of the Village of Glenview, as from time to time amended, and is successful in either the enforcement or defense proceeding as referred to herein, the Village shall recover its reasonable attorney[ ] fees and costs incurred in the course of those proceedings from the person and/or entity who has been found to have violated the Municipal Code of the Village of Glenview and/or who has initiated the proceedings." Glenview Municipal Code, ch. 1, § 1.13 (eff. June 21, 1994).

Zwick subsequently filed a motion to dismiss Glenview's claim for attorney fees. In his motion to dismiss, Zwick alleged that Glenview's fee-shifting ordinance was an invalid exercise of its home rule authority. See Ill. Const. 1970, art. VII, § 6(a). Specifically, Zwick contended that section 6 allowed a home rule unit to "exercise any power and perform any function pertaining to its government and affairs." Ill. Const. 1970, art. VII, § 6(a). Zwick then argued that Glenview's fee-shifting ordinance did not "pertain to its government and affairs" and, thus, turned the Illinois common law and the American Rule, under which each litigant bears the cost of his or her own legal expenses regardless of who is successful in the litigation (Scholtens v. Schneider, 173 Ill.2d 375, 384, 219 Ill.Dec. 490, 671 N.E.2d 657 (1996)), on its head.

The circuit court granted Zwick's motion to dismiss finding the ordinance was an impermissible use of Glenview's home rule powers because the ordinance violated the American Rule that each party is responsible for its own attorney fees.

"This case presented two very conflicting principles or doctrines, if you will, of our state. And one is the Home Rule powers of a municipal unit, and on the other hand the American Rule. And I understand that Home Rule units are granted much power to enforce or enact legislation dealing with its citizens and its interests. On the other hand, here it's going up against what is a fundamental principle of our jurisprudence, and that is the parties doing litigation bear their own fees. And it is clear that Illinois courts have adhered consistently to this American Rule and have held that attorney[ ] fees shall not be allowed unless specifically authorized by statute, by agreement of the parties or the litigation has created a common fund."

The circuit court also noted:

"It appears that the purpose of the fee shifting ordinance is to discourage those charged with ordinance violations with asserting any defenses to the charges or challenging the constitutionality of the propriety of municipal ordinances."

The circuit court surmised that citizens subject to the ordinance would be dissuaded from opposing "doubtful ordinances" where compliance would be less costly than litigation. The circuit court also emphasized that the fee-shifting ordinance was "one sided" in that there was no award of fees to those who prevailed against Glenview.

The circuit court then noted that the case law indicated a reluctance to reallocate the burden of litigation without legislative guidance and cited City of Naperville v. Lerch, 198 Ill.App.3d 578, 144 Ill. Dec. 668, 555 N.E.2d 1187 (1990) (award of attorney fees based on ordinance overturned as American Rule prevailed unless there was a statute or agreement to the contrary). The circuit court also noted that although it was aware of landlord-tenant ordinances that provided for tenants to receive attorney fees, the circuit court found that these landlord-tenant ordinances were similar to state statutes awarding attorney fees to consumers or certain classes of individuals who were successful in claims regarding their rights. The circuit court found those statutes dissimilar to, and distinguishable from, Glenview's fee-shifting ordinance. The circuit court stated:

"I find that the American Rule is so intrenched in our Court system in our jurisprudence that the Village does not have the authority to shift it under these circumstances."

This appeal followed.

ANALYSIS

We begin by noting that although no appellee's brief was submitted in this case, we are able to consider this appeal pursuant to First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill.2d 128, 345 N.E.2d 493 (1976).

Turning to the merits, Glenview asserts that the sole question presented for our review is, "[w]hether a home rule unit may require the opposing party to pay the unit's reasonable attorney[ ] fees when the unit is the successful party in litigation involving enforcement or defense of a provision of its local municipal code." Implicit in this question is the issue of whether section 1.13 was a valid and constitutional use of Glenview's home rule authority. See Glenview Municipal Code, ch. 1, § 1.13 (eff. June 21, 1994); Ill. Const. 1970, art. VII, § 6(a). "The construction of a municipal ordinance is a question of law, subject to de novo review." City of Chicago v. Taylor, 332 Ill.App.3d 583, 585, 266 Ill.Dec. 244, 774 N.E.2d 22 (2002).

A. Home Rule Authority

Glenview is a home rule unit. Village of Glenview v. Ramaker, 282 Ill.App.3d 368, 371, 217 Ill.Dec. 921, 668 N.E.2d 106 (1996). Under the 1970 Illinois Constitution, a home rule municipality "`may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare.'" Town of Normal v. Seven Kegs, 234 Ill. App.3d 715, 718, 175 Ill.Dec. 370, 599 N.E.2d 1384 (1992), quoting Ill. Const. 1970, art. VII, § 6(a).

Although the "[p]owers and functions of home rule units shall be construed liberally" (Ill. Const. 1970, art. VII, § 6(m)), a home rule municipality's powers are not absolute (see Endsley v. City of Chicago, 319 Ill.App.3d 1009, 1013, 253 Ill.Dec. 585, 745 N.E.2d 708 (2001)).

Substantive restrictions on the exercise of local governmental powers have come from various constructions of the clause: "pertaining to its local government and affairs," which is considered a term of art. Village of Dolton ex rel Winter v. CSX Transportation Inc., 196 Ill.App.3d 564, 566, 143 Ill.Dec. 505, 554 N.E.2d 440 (1990). "For a home-rule municipality to enact a valid ordinance, the subject to be regulated must pertain to local government affairs and not be of a statewide or national concern." Town of Normal, 234 Ill.App.3d at 719, 175 Ill.Dec. 370, 599 N.E.2d 1384. Therefore, under the Illinois Constitution of 1970, it is necessary for us to determine whether the subject regulated pertains to Glenview's local "government and affairs." See Town of Normal, 234 Ill.App.3d at 719, 175 Ill.Dec. 370, 599 N.E.2d 1384.

Moreover, "[t]he General Assembly can restrict the concurrent exercise of a home rule unit's power by enacting a law that specifically limits such power." Endsley, 319 Ill.App.3d at 1013, 253 Ill.Dec. 585, 745 N.E.2d 708.

"Home rule units may exercise and perform concurrently with the State any power or function of a home rule unit to the extent that the General Assembly by law does not specifically limit the concurrent exercise or specifically declare the State's exercise to be exclusive." Ill. Const. 1970, art. VII, § 6(i).

Otherwise, "`[h]ome rule units * * * have the same powers as the sovereign, except where such powers are limited by the General Assembly.'" City of Chicago...