Willie Pearl Burrell Trust v. City of Kankakee

• Decision Date: 10 June 2016
• Docket Number: No. 3–15–0655.,3–15–0655.
• Citation: 56 N.E.3d 1067,404 Ill.Dec. 654
• Parties: WILLIE PEARL BURRELL TRUST, Plaintiff–Appellant, v. CITY OF KANKAKEE, an Illinois Municipal Corporation, Defendant–Appellee.
• Court: United States Appellate Court of Illinois

56 N.E.3d 1067

404 Ill.Dec. 654

WILLIE PEARL BURRELL TRUST, Plaintiff–Appellant

v.CITY OF KANKAKEE, an Illinois Municipal Corporation, Defendant–Appellee.

No. 3–15–0655.

Appellate Court of Illinois, Third District.

June 10, 2016.

Timothy P. Dwyer, of St. Charles, for appellant.

Michael W. Condon and Yordana Sawyer, both of Hervas, Condon & Bersani, P.C., of Itasca, for appellee.

OPINION

Justice CARTER

delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, the Willie Pearl Burrell Trust, appeals from the trial court's granting of summary judgment in favor of defendant, the City of Kankakee. Plaintiff contends that certain genuine issues of material facts remain in regard to its mandamus claim. Additionally, plaintiff argues that it was itself entitled to summary judgment on its constitutional claims. Specifically, plaintiff maintains that defendant violated its right to due process by not providing notice and a hearing prior to its nonrenewal of plaintiff's rental licenses. Plaintiff also claims defendant imposed an unconstitutional condition upon the renewal of those licenses. We affirm.

¶ 2 FACTS

¶ 3 Plaintiff owns several properties in the City of Kankakee and sought to rent those properties to tenants. Pursuant to City ordinance, plaintiff successfully procured rental licenses for those properties. The rental licenses on the properties in question expired between June 2011 and November 2013, at which times plaintiff applied for renewal of the licenses.

¶ 4 Defendant took no action on plaintiff's applications, neither approving nor denying them. This inaction occurred in reliance on a City ordinance prohibiting the issuance of any license to any party indebted to the City. See Kankakee Municipal Code § 21–02. Records showed that plaintiff owed defendant a sum of $43,866.68.¹ The money owed by plaintiff was a result of a series of tickets issued for violations of the Kankakee Municipal Code (Municipal Code), dating as far back as 2003. Plaintiff claimed that the properties were in compliance with the ordinance governing rental licenses. See Kankakee Municipal Code § 8–02–112.

¶ 5 In a complaint filed on October 3, 2013, plaintiff sought a writ of mandamus that would compel defendant to comply with the rental license ordinance and act upon plaintiff's rental license applications. Alternatively, plaintiff alleged that the ordinance prohibiting the issuance of licenses to parties indebted to the City stood as an unconstitutional condition.

¶ 6 On April 21, 2014, plaintiff filed a motion for summary judgment, which the trial court denied. Defendant subsequently filed its own motion for summary judgment. In response, plaintiff cross-petitioned its second motion for summary judgment. Plaintiff attached to its motion an affidavit from Willie Pearl Burrell, plaintiff's sole beneficiary, dated June 10, 2015. In the affidavit, Burrell averred that defendant had informed her that she owed a sum of $41,285.77. Burrell further averred that when she attempted to tender payment in that amount, defendant, through City Attorney L. Patrick Power, “refused to accept [Burrell's] payment because [she] made it clear that the tender was made under protest, and [she] intended to file suit against [defendant].” In her deposition, Burrell explained that she wanted to get her rental licenses, and believed that if she paid under protest she would get her money back after a lawsuit. She testified that when she attempted to make the payment, Power told her to take the check back and “go get us half.” According to Burrell, Power explained that the City was “trying to work with the landlords.”

¶ 7 Plaintiff's counsel addressed the issue of the attempted payment at arguments on the summary judgment motions:

“And then, your Honor, my client goes to the city with $41,000 and change and says, here, here's your money. Please give me the rental license applications. And the city says oh, no, we can't possibly do that. Oh, you know why, because we're going to work with everybody, not just you, but we're going to work with all the landlords. Well, [Y]our Honor, in their brief there's no ordinance that gives the city or the city attorney any unilateral authority to negotiate with people who allegedly owe the city money. There's no authority in any ordinance to refuse payment of fines. On what basis? On what basis, your Honor, would the city turn back a certified check for over $41,000 if they weren't playing games with the plaintiff?”

The trial court granted defendant's motion for summary judgment on August 18, 2015.

¶ 8 ANALYSIS

¶ 9 On appeal, plaintiff argues (1) that the trial court's granting of summary judgment for defendant on plaintiff's mandamus claim was improper where a number of genuine issues of material fact existed in relation to that claim. Plaintiff further contends that it was entitled to a judgment as a matter of law on its claims that (2) defendant deprived plaintiff of due process and that (3) defendant placed an unconstitutional condition upon the issuance of rental licenses. We reject each argument in turn.

¶ 10 Under section 2–1005 of the Code of Civil Procedure

, summary judgment shall be granted when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2–1005(c) (West 2010). “ ‘A triable issue of fact exists where there is a dispute as to a material fact or where, although the facts are not in dispute, reasonable minds might differ in drawing inferences from those facts.’ ” Danhauer v. Danhauer, 2013 IL App (1st) 123537, ¶ 35, 377 Ill.Dec. 508, 2 N.E.3d 424 (quoting Petrovich v. Share Health Plan of Illinois, Inc., 188 Ill.2d 17, 31, 241 Ill.Dec. 627, 719 N.E.2d 756 (1999) ). In cases involving summary judgment, we conduct a de novo review of the evidence on the record. Happel v. Wal–Mart Stores, Inc., 199 Ill.2d 179, 185, 262 Ill.Dec. 815, 766 N.E.2d 1118 (2002). In our review, we “construe the facts strictly against the moving party and in the light most favorable to the nonmoving party.” Id. at 186, 262 Ill.Dec. 815, 766 N.E.2d 1118.

¶ 11 Chapter 21, article I of the Municipal Code is entitled “Licenses Generally.” Kankakee Municipal Code § 21–02. Section 21–02 of that article prohibits the issuance of any required license to a party indebted to the City. Id. Specifically, this section holds:

“No licenses required by this Code for the engaging in any business or the sale of any article shall be issued to any person who is indebted to the City, or any department thereof or who is indebted to the City for any fine or penalty adjudged against such person for the violation of any ordinances of the City, unless the indebtedness or the fine or penalty is first paid.” Id.

¶ 12 Section 112.1 of the Kankakee Property Maintenance Code holds that “[n]o person, corporation, or other entity shall rent * * * any dwelling unit * * * unless the City of Kankakee has issued a current unrevoked operating license * * * for the specific dwelling unit.” Id. § 8–17–112.1. Section 112.2 of the Property Maintenance Code holds that

“[a]n initial operating license shall be issued upon the inspection of the premises and the determination by the City of Kankakee that the premises are in compliance with the applicable Property Maintenance, Fire and Life Safety Codes as amended. Upon the issuance of an initial license, every operating license, with the exception of Section 8 properties which shall require a 1 year annual operating license, shall be issued for a period of 2 years from its date of issuance, unless sooner revoked as provided pursuant to the applicable sections of this code.” Id. § 8–17–112.2.

An otherwise unexpired license may be revoked when “any dwelling unit within a rental building fails to meet all applicable requirements of all codes of the City of Kankakee and statutes of the State of Illinois.” Id. § 8–17–112.13. Upon receiving a notice of revocation, the property owner may appeal the revocation. Id.

¶ 13 Section 112.19 of the Property Maintenance Code, entitled “Renewal of license,” holds:

“No operating license may be renewed unless an application therefore has been made prior to the expiration of the existing operating license. In the event that a license is sought after the expiration date of the current license, the applicant for the license shall pay an additional fee of $100.00 dollars for said license. Upon payment of the fee and the property being determined to be in compliance with all applicable rules and regulations and ordinances of the City of Kankakee and statutes of the State of Illinois, a license will thereupon be issued.” Id. § 8–17–112.19.

¶ 14 Section 112 of the Building Code governs appeals. Id. § 8–02–112.1. That section holds:

“1. An appeal of any decision or determination of authorized city staff must be submitted in writing to the Code Official within 10 days of the date of mailing thereof. The Code Official shall then notify the authorized owner or agent of the administrative decision on the appeal within 10 days of receiving the written appeal request. The decision of the Code Official constitutes the final administrative action of the City.

2. Any person or entity seeking review of any tickets issued by authorized city staff for violation of this code may appear before the Adjudication Court. The decision of the Adjudication Court shall constitute the final administrative act of the City.” Id.

¶ 15 I. Mandamus

¶ 16 The writ of mandamus is an extraordinary remedy used to compel “the performance by a public officer of nondiscretionary official duties.” People ex rel. Birkett v. Konetski, 233 Ill.2d 185, 192–93, 330 Ill.Dec. 761, 909 N.E.2d 783 (2009)

. Mandamus will only issue where the petitioner has shown: (1) a clear right to the relief requested; (2) a clear duty of the public officer to act; and (3) a clear authority on the part of...