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IN THE CIRCUIT COURT OF COOK COUNTY,ILLINOIS

COUNTY llEPARTMENT,CHANCERY DIVISION


TERIE L. KATA,et al.,
Plaintiffs,
~'

Case No. 12 CH 14186


Hon, Rita Novak
Calendar 9

CITY OF CHICAGO,
Defendant.

DEFENDANT CITY OF CHICAGO'S MOTION TO EXCEED PAGE LIMIT ~_


Defendant City of Chicago (the "City"), through its aftorney, Stephen R. Patton,
Corporation Counsel for the City of Chicago, hereby moves to exceed the fifteen-page limit for
ids Memorandum in Support of its Combined Section 2-619.1 Motion to Dismiss the Second
Amended Class Action Complaint (the "Complaint" or "Campl.") filed by Plaintiffs Terie L.
Kata, Maureen Sullivan, Nicholas Clarke, Bohdan Gernaga, and Niraj Raini (collectively,
"Plaintiffs"), In support of this Motion, the City states as follows:
1.

On December 22, 2014, Plaintiffs filed their Complaint in which they seek to

represent a class of all those ticketed under the City's automated red light ticketing o~dinance
since t11e system's inception in 2003.

Plaintiffs claim the ordinance is invalid and

unconstitutional, and attack the state statute, which authorizes such automated red light systems
in eight specific counties, as violative of several provisions of the Illinois Constitution.
2.

Although the Complaint contains only three separately-headed counts, it is 4$

pages long, includes over 300 paragraphs, and contains numerous claims within the three counts.
Specifically, Plaintiffs allege that: (1) the state statute is unconstitutional special or local
legislation, Compl. ~~( 276-77;(2) the state statute violates the uniformity clause of the Illinois
Constitution, id. ~i 278; (3) t17e state statute violates the equal protee~ion clause of the Illinois

Constitution, icy. ~( 279;(4) t11e ordinance is invalid because the City lacked authority to enact it
in 2003, id. !1 267-71; (5) the ordina~~ce remains invalid because the City failed to re-enact it
after 2006, id. ~j 274;(6) the o~dinance ~~iolates the due process clause of the Illinois Constitution
by punishing vehicle ovtme~s instead of drivers, id. ~( 282; (7) any ticket issued under the
ordinance following a yellow light with a duration of less than 3.0 seconds is i~lvalid, id. ~ 292;
and (8) Plaintiffs are entitled to restitution of all money paid for any ticket determined to be
improper under any of the foregoing theories, ad. pp. 46-47.
3.

The City has filed, concunently with this motion, a section 2-619.1 motion to

dismiss the Complaint in its entirety (the "City's Motion" or "Motion").

In addition to

addressing all of Plaintiffs' claims, tl7e City's Motion also seeks to dismiss Plaintiffs' claims
based on resjudiccrta, the statute of limitations, and the voluntary payment doctrine.
4.

This Court's standing order limits memoranda in support of motions to fifteen

pages without leave of court.


5.

Because Plaintiffs' Complaint. raises several constitutional claims, and the City

raises several defenses as bases to dismiss, the City seeks leave to file a memorandum~in support
of its Motion to Dismiss of twenty-nine (29) pages.

A copy of the City's proposed

memorandum, without exhibits, is attached hereto as Exhibit. A. This additional space is critical
to the City's argument and for the Court's full understanding of the issues raised in the
Complaint, which seeks to in~ralidate the City's entire red light camera ticketing program.
6.

The City has attempted to keep its arguments as short. as possible so as to

minimize the amount of additional space required.


WHEREFORE,the Cify respectfully requests that this Court grant the City leave to file
instanter its Memorandum in Support of its Section 2-619.1 Motion to Dismiss of 29 pages and

~6~

gra~lt the City such further relief as the Court deems just and appropriate.

Dated: February 10, 2015


Respectfully submitted,
STEPHEN R. PATIO ,
Corporation Co el fo t e Cit ~ f hicago
Bar

MARDELL NEREIM
REBECCA ALFERT HIRSH
GRANT ULLRICH
City of Chicago, Department of Law
Constitutional and Commercial
Litigation Division
30 North LaSalle Street, Suite 1230
Chicago, Illinois b0602
(312) 742-0260 / 744-7864
Attorney No. 90909

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~""~ .
~'
Assistant Coipoi~ation Counsel

~ 1 1

IN THE CII2CUTT COURT OF COOK COUNTY,ILLINOXS


COUNTY DEPARTMENT,CHANCERY DIVISION
TERIE L. KATA,et al.,
Plaintiffs,
v.

Case No. 12 CH 1418b


Hon. Rita Novak
Calendar 9

CITY OF CHICAGO,
Defendant.

CITY OF CHICAGO'S MEMORANDUM IN SUPPORT OF YTS


COMBINED SECTION 2-619.1 MOTION TO DISMISS
THE SECOND AMENDED CLASS ACTION COMPLAINT

MARDELL NEREIM
REBECCA ALFERT HIRSCH
GRANT ULLRICH
City of Chicago, Department of Law
Constitutional and Commercial
Litigation Division
30 North LaSalle Street, Suite 1230
Chicago, Illinois 6D602
(312) 742-0260 / 744-7864
Attorney No. 90909

TABLE OF CONTENTS
TABLE OF CONTENTS ............................................................................................................... i
TABLE OF AUTHORTTI~S ......................................................................................................... ii
INTRODUCTION ..........................................................................................................................1
PROCEDURAL BACKGROUND ................................................................................................2
ARGUMENT ................................................................................................... ...........................4
I.

PLAINTIFFS' CLAIMS ARC BARRED BY RESJUDICATA BASED ON THE


JUDGMENT TN KEATI~VG V. CITY OF CHICAGO. (Section 2-619(a)(4)) ............4
A,

Plaintiffs' legal interests were adequately represented in Keating ..................4

B.

The claims and causes of actions raised in this case were


Y~aised or could have been raised in Keating ....................................................6

C.

The decision in Keating is a final judgment on the merits ..............................6

II.

PLAINTIFF CLARKE'S CLAIMS ARE BARRED BY TIDE 5-YEAR


STATUTE OF LIMITATION. (Section 2-619(a)(5)) ...............................................7

III.

THE STATUTE DOES NOT VIOLATE THE ILLINOIS CONSTITUTION.


(Section 2-61 S) ............................................................................................................9

IV.

A.

The Statute is not special or local legislation ..................................................9

B.

The unifori~7ity clause does i~ot apply to the Statute, and


even if i~ did, tl~e Statute passes the test as a matter of law ...........................13

C.

Plaintiffs fail to state an equal protection claim .................,..........................15

PLAINTIFFS FAIL TO STATE A VALID CLAIM CHALLENGING TIDE


CITY'S AUTHORITY TO ENACT THE ORDINANCE. (Section 2-615) ............15
A.

To the extent t17e Ordinance was pz~eempted from 2003-2006,


the Statute automatically revived it in May 2006 ..........................................16

B.

If re-enactment was required, the City Council has done so .........................17

C.

The City has inherent home rule authority to adopt the Ordinance ..............17

D.

The Ordinance has never been specifically preempted .................................18

V.

PLAINTIFFS FAIL TO ALLEGE A DUE PROCESS VIOLATION. (2-615) .......22

VT.

PLAINTIFFS FAIL TO STATE A VALID CLAIM WITH RESPECT


TO THE TIMING OF YELLOW LIGHTS. (Section 2-615) ..................................24

VII.

PLAINTIFFS' CLAIMS ARE BARRED BY THE VOLUNTARY


PAYMENT DOCTRINE. (Sectiotl2-619(a)(9)) .....................................................27

CONCLUSION .............................................................................................................................29
INDEX OF EXHIBITS .................................................................................................................30

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TABLE OF AUTHORITIES
Cases
AllegJ~o Sc~~vv., Ltc~ v. Metro. Pies c~ Exposition Auth., 172 Ill. 2d 243(1996).............................14
Ar~c~ngold Co~~. v. Zehnder, 329 Ill. App. 3d 781 (1st Dist. 2002),
aff'd, 204 Ill. 2d 142(2004)................................................................................................14, 15
A~~iva v. Madigan, 209 Ill. 2d 520(2004) .......................................................................................4
13er~g 1~. City ofChicago, 97 Ill. App. 2d 410 (1st Dist. 1968).................................................28, 29
13luse v. State, 55 I1L 2d 94(1973) ................................................................................................25
Cable Aaerica, Inc. v. Pace Elecs., Inc., 396 Ill. App. 3d 15 (1st Dist. 2009)...............................2
Chicago Nat'l League Ball Club, Ifac. >>. Thompson, 108 Ill. 2d 357(1985).............................9, 11
City ofl3u~bank v. Czaja, 331 Ill. App. 3d 369 (1st Dist. 2002)...................................................16
Czly ofChicago v. Hertz Co~mefcial Leaszng Corp., 71 Ill. 2d 333(1978)..........................23, 24
City ofChicago v. Ronan, 184 Ill. 2d 504(1998).........................................................................18
City of Wheaton v. Loerop, 399 Ill. App. 3d 433(2d Dist. 2010)...........................................19, 20
Crocker v. Finley, 99 Ill. 2d 444(1984) .......................................................................................13
Cutinello v. Whitley, 161 Ill. 2d 409(1994)........................................................................9, 11, 12
Davzs v. Munie, 235 Ill. 620(1908).................................................................................................8
Dreyfus v. Ameritech Mobile Comm., b~c., 298 Ill. App. 3d 933 (lst Dist. 1998)........................28
Fischetti v. Vill. ofSchaumburg, 2012 IL App (1st) 111008 ............................................22, 23, 24
GJ~abe~~ v. City ofAnkeny,656 N.W.2d 157(Iowa. 2003)..............................................................26
Hinshaw v. Coachmen Indus., Inc., 319 Ill. App. 3d 269(1st Dist. 2001)....................................10

Hoffmann v. Clank, 69 Tll. 2d 402(1977)......................................................................................13


Hudson ~~. City ofChicago, 228 Ill. 2d 462(2008)......................................................................4, 6
Ic~i~zs v. City ofChicago, 552 F.3d 564 (7t11 Cir. 2009)..................................................................23
Johnson v. Nationwide Bus. I'or~ns, Inc., 103 Ill. App. 3d 631 (1st Dist. 1981).............................5
Keating v. City ofChicago, 2013 IL App (1st) 112559-U ..........................................................3, 5

Keatzng v. City o,fChzcago, 2014 IL 116054...................................................................................3


Lamar Whiteco OutdooN Co~~~.v. Czty of West Chicago, 3SS Ill. App. 3d 352(2d Dist. 2005)......8
Lzly Lake Road Defenders v. Cnty. ofMcHe~~ry, 156 Ill. 2d 1 (1993)...........................................16
Maloney v. Bolver, 113 Ill. 2d 473(1986).....................................................................................13
Mo~an 7rans~~. Copp. v. Str~oge~~, 303 Ill. App. 3d 4S9(1st Dist. 1999)........................................14
R~ Ill. HoM~e Builders Assn, Inc. 1~. Cnty. ofDz~~'age, 165 I1L 2d 25 (1995)..................................9
Napleton v. Vill. ofHznsdale, 229 IlL 2d 296(2008)..............................................................22, 23
Nelson v. Chicago Pc~r^kDzst., 408 Ill. App. 3d 53 (1st Dist. 2011)................................................4
Palm v. 2800 fake Sl~oi e Dii~~e Condo. Assn,2013 IL 110505.............................................17, 18
People ex rel. 13u~ris v. 1'y~ogr~essive Land Develope~~s, Znc., 151 III. 2d 285 (1992)......................4
People ex ~el. Cnty. ofDuPage v. Siith, 21 Ill. 2d 572(19b 1)........................................11, 12, 13
People ex ~el. Ryan >>. Vill. ofHanover Park, 311 Ill. App. 3d 515 (L st Dist. 1999)..18, 19, 20,21
People v. Jaudon, X07 Ill. App. 3d 427(lst Dist. 1999)...............................................................23
Peters v. City ofSp~infield, 57 II1. 2d 142(1974)........................................................................20
Petzt v. Czt~> ofChicago, 766 F. Supp. b07(N.D. Ill. 1991)............................................................5
Pfeifer v. BeIX &Howell Ca., 53 Ill. App. 3d 26(l st Dist. 1977)...................................................8
P~~imeco PeNs. Commc 'r~s, L.P, v. 1:C.C., 196 Ill. 2d 70(2001)....................................................14
Ralph v. Bd. ofEduc. ofDepute Unit Sch. Dist. l~~o. 103, 84 Ill. 2d 436(1981).............................6
Rives Pa~~k, Inc. v. City ofHighland Park, 184 Tll. 2d 290(1998)..................................................6
Sccrd~~on v. Crty ofDes Plarmes, 153 Ill. 2d 164(1992).................................................................18
SDS Paf~tner~s, Inc. v. Kranze~~, 305 Ill. App. 3d 893 (4th Dist. 1999).............................................6
Senn Park Nuiszng Ctr. v. Miller, 104 Ill. 2d 169(1984)..............................................................26
Sundance Homes, Inc. v. Cnty. ofDuPage, 195 Ill. 2d 257(2001).............................................7, 8
United Pr^zvate Detective al~d Sec. Ass'n, Inc. v. City ofChicago, S6 Ill. App. 3d 242
(lst Dist. 1977)..........................................................................................................................28
Vtrn Ha~~ken v. City ofChicago, 103 F.3d 1346 (7th Cir. 1999)....................................................21

Van Harken >>. City ofChicago, 305 Ill.. App. 3d 972(1st Dist. 1999).........................................21
Vill. ofScl~aumbu~g v. Doyle, 277 Ill. App. 3d 832(1st Dist. 1996)..............................................9
Wa~ella Educ. Assn v. Ill. Educ. Labot~ Relations Bd., 177 Ill App. 3d 153 (4tii Dist. 1988).......8
Wauconda Fzr^e P~~ot. Dist. v. Stoneulall Of~c1~a~ds, LLP,214 I1L 2d 417(2005)..........................23
Wilkes v. Deeffeld-Bannockbur~z Fzre Prot. Dist., 80 Ill. App. 3d 327(2d Dist. 1979)..............13
Yonikz~s v. I~~dus. Corn~~~'n, 228 Ill. App. 3d 333 (5th Dist. 1992)..........................................16, 17
Yoi~ulf~~azoglu v. Lake Fo~~est Hosp., 359 Ill. App. 3d SS4 {1st Dist. 1995)....................................5
Statutes
5 ILCS 100/1-5, et seq...................................................................................................................26
65 ILCS 5/1-2.1-10 ........................................................................................................................22
65 ILCS 5/1-2.1-2..........................................................................................................................22
625 ILCS 5/1.1-201, et seq.............................................................................................................14
625 ILCS 5/11-208.3 ......................................................................................................................:3
625 ILCS 5/11-208.6 .....................................................................................................3, 10, 13,22
625 ILCS 5/11.-208.8 .......................................................................................................................3
625 ILCS 5/11-301 ........................................................................................................................26
625 ILCS 5/11-305 ........................................................................................................................21
625 ILCS 5/11-306 ........................................................................................................................21
625 ILCS 5/16-104 ........................................................................................................................21
625 ILCS 5/6-204 ..........................................................................................................................21
735 ILCS 5/13-205 ..........................................................................................................................7
735 ILCS 5/2-603 ............................................................................................................................2
735 ILCS 512-615 ................................................................................................................. passim
735 ILCS 5/2-619 ..........................................................................................:...................4, 7, 8, 27
735 ILCS 5/2-619.1 .........................................................................................................................3

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An Act concerning transportation, Pub. Act 94-0795, 2006 Ill. Laws 1204
(attached as Ea. 1).................................................................................................................1, 22
U.S.C. Title 23 .........................................................................................................................25, 26
Mules and Regulations
Ill. S. Ct. R. 23 .................................................................................................................................3
14 Ill. Reg. 3694(Feb. 22, 1990)(attached as Ex. 12)..................................................................26
23 C.F.R. ~ 655.603.......................................................................................................................26
74 Fed. R. 66730(Dec. 16, 2009)..................................................................................................25
77 Fed. R. 28460(May 14, 2012)..................................................................................................25
92 Ill. Admin. Code 546 .............................................................................................................26
Constitutional Provisions
Ill. Const., art. IV, ~ 13 ....................................................................................................................9
Ill. Const., art. IX, ~ 2....................................................................................................................13
Ill. Const., art. VII, ~ 6.............................................................................................................17, 18
Ordinances
J. Proc. ofthe Cr'ty Council ofChicago, Ill., Jul. 9, 2003, at 4349(attached as Ex. 2).......1, 18, 20
J. P~~oc. ofthe Czty Council ofChicago, Ill., Nov. 13, 2007, at 14999 (attached as Ex. 9A)........17
,~ P~~oc. ofthe City Council ofCl~~zcago, Ill., Dec. 2, 2009, at 78837(attached as Ex. 9B)..........17
J. P~oc. oftl~e City Council ofCl~ic~rgo, Ill., Nov. 16, 2011, at 13798 (attached as Ex. 9C)........17
.I. Ptoc. o_fthe City Council ofChicago, III., Apr. i8, 2012, at 23762(attached as Ex. 9D)........17
Municipal Code ofChicago, Ill., Ch. 9-100 (attached as Ex. 3).................................20, 24, 28, 29
Municipal Code ofChzcago, Ill., Ch. 9-102 {attached as Ex. 3).........................................2, 21, 28

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INTRODUCTION
This case is a challenge to the automated. red light camera enforcement program operated
by the Crty of Chicago ("City") since 2003. Plaintiffs challenge the 2006 state law which
partially authorized such programs (the "Statute"); the 2003 ordinance which created the City's
program (the "Ordinance"); and the legality of certain tickets issued under the Ordinance.~ This
case is nearly identical to a putative class action brought by the same counsel in 2010, which was
resolved in the City's favor. Because all of Plaintiffs' claims have been or could have been
raised in the previous case, as well as in other red light camera litigation brought individually by
some of the Plaintiffs, the entire case should be dismissed on fesjudicutu grounds.
This case should also be dismissed because none of the claims have any merit in their
own right.

Although. Plaintiffs' 48-page, 301-paragraph Second Amended Ciass Action

Complaint ("Complaint" or "Compl.") purports to only contain three counts, it alleges the
following laundry list of claims: {1) the Statute is unconstitutional special or local legislation,
Compl. ~ 276-77; (2) the Statute violates the uniformity clause of the Illinois Constitution, id.
278; (3) the Statute violates the equal. protection clause of the Illinois Constitution, id. 279;
{4) the Ordina~lce is invalid because the City lacked authority to enact it in 2003, id. ~ 267-71;
(5) the Ordinance remains invalid because the City failed to re-enact it after 2006, id. 274;
(6)the Ordinance violates the due process clause of the Illinois Constitution b}~ punishing vehicle
owners instead. of drivers, id. ~ 282;(7) any ticket issued uilde~~ the Ordinance following a yellow
light with a duration of less that 3.0 seconds is invalid, zd. ~( 292; and {8) Plaintiffs are entitled to
restitution of all money paid for any ticket determined to be improper under any of the foregoing
~ The Statute is: A~~ Acf concerning transportation, Pub. Act 94-0795, 2006 Ill. Laws 1204
(ail~ending the Illinois Vehicle Code, 625 ILCS 5/1-100 et seq.)(attached as Ex. 1). The Ordij~ai~ce, is
found at J. Proc. ofthe City Council ofChicago, Ill., Jul. 9, 2Q03, at 4349 [hereinafter Cou~2czl J.~ (adding
Ch. 9-102 of Yl~e Municipal Code of Chicago("MCC"))(attached as Ex. 2).

theories, id. pp. 46-47.~


Plaintiffs' attacks on the Statute fail because the Statute is not prohibited special or local
legislation and does not violate the uniformity or equal protection clauses of the Illinois
Constitution. Clarke is the only plaintiff who claims to have been ticketed under the pre-2006
Ordinance, and his claims are barred by the statute of limitation. Plaintiffs' claims against the
pre-2006 Ordinance also fail because the City had constitutional home rule authority to enact the
Ordinance in 2003 and was not preempted from exercising it by any statute. Plaintiffs' claim
that the City was required to repeal and re-enact the Ordinance aftez passage of the Statute (~o the
extent it was pre-empted earlier) is contrary to well-established legal principles, and their
undeveloped due process claim fares no bitter. Plaintiffs' yellow light duration claims fail
because the Complaint does not identify any legally-enforceable requirement related to the
minimum duration of yellow traffic Lights. Finally, Plaintiffs are not entitled to restitutio~i
because the Ordinance is valid, but even if it was not, their claims for restitution would be barred
by the voluntary payment doctrine. For all of these reasons, as explained in detail below, the
entire Complaint should be dismissed.
PROCEDURAL BACKGROUND
On July 9, 2003, the City adopted the Ordir3ance, which established a program. to use
electronic sensors and cameras to detect and record images of vehicles that had entered certain
intersections against a red light. Compl. ~ 1; MCC 9-102-010 et seq. (attached as Ex. 3). The
Statute, which took effect May 22, 2006, provides statirtor~~ authority for the installation of such

~ Because Plaintiffs' allegations are repetitive and each claim is not presented in a separate count,
the Complaint does not comply with section 2-603 of the Code of Civil Procedure. See 735 ILCS
5/2-603. Failure #o com}~ly with section 2-603 is a st~f~cient basis to dismiss a complaint, when either the
complaint is not "plain and concise" or when "tl~e allegations ...suggest multiple_ causes of action, i~ot
identified and segregated as required under section 2-603(b)." Cable America, Inc. v. Pace Elecs., Inc.,
396 I11. App. 3d 1 S, 19-22(l st Dist. 2009).

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red light camera systems in eight Illinois counties Cook, DuPage, Kane, Lake, McHenry, Will,
St. Clair and Madison and allowed for the imposition of liability on the registered owner of the
violating vehicle. Compl. ~( 107-110; 625 ILCS S/11-208.8(c), 5/11-208.6(m). The Statute also
amended the Illinois Vehicle Code to allow any municipality or county with such a system
(home rule or not) to administratively adjudicate violations. b25 ILCS 5/11-208.3(a).
In 2010, Plaintiffs' counsel in this case filed a putative class action in the Circuit Court of
Cook County, Keating et al. v. City of Chicago, cha11e11gi11g the Statute and Ordinance. That
case was dismissed with prejudice by the Circuit Court on August 2, 2011. See Mem. Op. &
Order, Cir. Ct. Cook Cnty. No. 10 CH 28652 (Aug. 2, 2011)(Hyman, J.) (attached as Ex. 4).
The Appellate Court. affirmed the judgment of the Circuit Court on January 23, 2013, in an order
issued under Supreme Court Rule 23.3 2013 IL App (1st) 112559-U. The Supreme Court heard
a further appeal but was unable to secure the constitutionally ~equired concurrence of four judges
for a decision; its resulting dismissal of the appeal. had the same effect "as an affirmance [of the
Appellate Cou1~t decision) by an equally divided court." 2014 IL 116054, 1.
In the meantime, plaintiffs Kata and Sullivan,. who were members of the puta#ive class in
Keating, filed this p~.rtative class action on April 18, 2012. This case was stayed pending the
appeal of h'eatzng in the Appellate Court and Supreme Court. On November 20, 2014, the
Supreme Court dismissed the Keating appeal. On December 15, 2014, this Court lifted the stay
and granted Plaintiffs leave to file an amended complaint. Plaintiffs filed the instant Complaint
on December 22, 2014, addi~~g plaintiffs Clarke, Gernaga, and Rarni. The City now moves to
dismiss pursuant to 735 ILLS 5/2-619.1.
3 Orders filed under Rule 23 are not precedential and may not be cited by any party "except to
support co~~tentions of double jeopardy, fesjudicata, collateral estoppel or law of the case." Ili. S. Ct. R.
23. The City is citing the Keating Order to support resjudicata grounds, see ii~fi a Park I, and a copy is
attached as Exhibit 5 a~ required by Rule 23.

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ARGUMENT
I.

PLAINTIFFS' CLA~IYIS ARE BARRED BY RES JUDICATA BASED ON THE


JUDGMENT IN ~~A?'Z1VG V. CITY OF CHICAGO. (SECTTON 2-619(a)(4))
Res judicata provides that a final judgment on the merits by a court of competent

jurisdiction acts as an absolute bar to a subsequent action between the same parties or their
privies involving the same claim, demand, or cause of action. Hudson v. Czty of Chicago, 228
Ill. 2d 462, 467 (2008). The bar extends to all matters raised in the first action, as well as to all
matters that could have been raised in that action. Id. Resjudicata promotes judicial economy
by preventing repetitive litigation and also protects parties from being forced to bear the unjust
burden of relitigating essentially the same case. Ar~iva v. Madigan, 209 Ill. 2d 520, 533 (2004).
All elements of i~esjudicata are me# in this case.
A.

Plaintiffs' Legal Interests Were Adequately Re~resen~ed In Keating.

A party is bound by a final judgment in a prior action if that party was in privity with one
of the parties in that lawsuit. Privity exists "between parties who adequately represent the same
legal interest." People ex ~~el. Bu~~ris v. P~og~~essive Land Developers, Inc., 151 I11. 2d 285, 296
(1992). Legal interests are the same when they involve the same "overriding concern." Nelson
v. Chicago Payk Dist., 408 Ill. App. 3d 53, 62(1st Dist. 2011). A putative class action can have
a preclusive effect on putative class members whose legal interests were. adequately represented
by parties in that case even if the class was not certified. Id.
Here, Plaintiffs are alleged to be vehicle owners who regularly drive their vehicles in
Chicago. Compl. ~~~ 14-19. All were issued automated red-light violation citations under the
Ordinance, id. ~ 175, 193, 203, 216, 229, and all paid their fines, id.'~ 185, 196, 206, 223, 235.
They bring this action on their own behalf and on behalf o~ a putative class of similarly situated
persons. Id, '(('~ 240-~2. Likewise, in Keating, the plaintiffs who were found to have standing by

the Appellate Court were "registered vehicle owners w17o received red light violation citations
from the City of Chicago" and "paid the fines." 2413 IL App (1st) 112559-U, ~ 4 & 17.
Keating was also brought as a putative class action. Id. ~ 5; Keating v. City of Chicago, Am.
Compl. filed 4/11/2011, No. 10 CH 28652, ~ 114 (hereinafter "Keatz~~g Compl.")(attached as
Ex. 6). Plaintiffs here were members of the pl~tative class in Keating defined as:
"persons who received. a `Red Light Violation' or `Violation Notice' or similar
communication, issued by or in the name of the CITY OF CHICAGO ...which
Notice alleged or asserted any traffic signal violation of the Illinois Motor Vehicle
Code or the Chicago Municipal Code, where such Notice was generated in whole
or in part based on images generated by a `Red Light Camera' or Automated
Traffic Enforcement System, and who, by reason thereof, suffered an adverse
legal consequence, incltizding: imposition of a fee, fine, penalty or surcharge."
Keating Compl. 114.
I'uthermore, the Keating plaintiffs were represented by the same counsel as Plai~ltiffs in
this case. Although the mere fact that the same attorney represents two izldividuals does not
necessarily place those individuals in privity, "the appearance of the same attorney ...bolsters a
finding of privity." Yoeulmazoglu v. Lake Fof~est Hosp., 359 Ill. App. 3d 554, 562 (lst Dist.
1995) (citing 47 Am..Tur. 2d Judgments 589); see also .Johnson v. Nationwzde Bus. Fo~~ms,
Inc., 103 Ill. App. 3d 631, 635 (lst Dist. 1981)(that same attorney represented both plain~i~fs
supports finding of privity). This is especially true where, as here, the plaintiffs in the second
case would ha~~e benefitted if the plaintiffs in the earlier case had prevailed. Petit v. City of
Chicago, 766 F. Sapp. 607, 613 (N.D. Ill. 1991)(To allow "a second determination by bringing
[a] separate action ...would encourage `fence-sitting' and discourage the principles and policies
the doctrine of res judicata was designed to promote"). Accordingly, Plaintiffs' legal interests
were raised and adequately represented in Keatzng.

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B.

The Claims And Causes Of Actions Raised In This Case Were


Raised Or Could Have Been Raised In Keating.

Causes of action a~~e considered to lie the sane for ~esjudzcata purposes when they "arise
from a single group of operative facts, regardless of whether they assez-t different theories of
relief:" River~~ Park, Inc. v. City ofI~zgl~land Pc~Nk, 184 Ill. 2d 290, 311 (1998). The operative
facts in this case and h'eatin~g are identical: the City enacted the Ordinance, the General
Assembly adopted the Statute granting additional authority for the Ordinance, and plaintiffs and
members of the putative class have been ticketed under the Ordinance. Claims related to yellow
light duration were also raised in the eat~lier litigation. See Keating Compl. '~ 14, 107. In fact,
many of the substantive allegations i~l this Complaint are verbatim from Keating.4 Any new
material in this Complaint is either argument, irreleva~~t to the claim, or clearly could have been
raised in Keafirrg. ~urth~rmore, this case seeks essentially the same relief as was sought in
Keatzr~g: declarations invalidating the Ordinance and. the Statute, i~ijunc~ions barring enforceme~it
of the Ordinance, and refunds of previously-paid amounts. C'of~~pa~~e Compl. at pp. 43-47, ~~ith
Keating Compl. at pp. 24-26.
C.

The Decision In Keating Ys A Final Judgment On The Merits.

To have preclusive effect, a judgment must be final and on the merits. Hudson, 228 Ill.
2d at 467. A decision is ~"inal, for i~esjudicata purposes, when it leaves nothing more to do than
execute the judgment. SDS Partne3~s, Inc. v. Kr~amer~, 305 Ill. App. 3d 893, 896 (4th Dist. 1999).
An appellate decision is final if it affirms the judgment of the trial court. Cf. Ralph v. Bd. of
Educ. ofDepute Unit Sch~. Dzst. No. 103, 84 Ill. 2d 436, 441-42 (1981)(mandate directing trial
4 Co~np~zre Compl, '~ 20-22, with Keating Compl. ~ 8-10; Compl. ~'~ 23-34, Keating Compl.
~ 15-22; Compl. ~('~ 35-43, Keatif~zg CoinpL ~'~ 23-29; Compl. ~j~ 45-47, Keating Compl. ~(~ 31-33;
Co~i~pl. ~ 49, Keating Compl. 36; Compl. ~'~ 51-52, Keating Compl. ~~ 38-39; Compl. '~~ 106-]12,
Keating Compl. ~('~ 40-46; Compl. '~'~ 7 79, Keatzrag Con1p1. ~ 49; Compl. '~ 122-151., Kecatii~g Compl.
S l -68; Cotnpl. ~j 165, Keating Comp1. ~j l 4.

-6-

court to enter judgment is not final). Thus, the decision in Keating is final in all respects.
All of t11e elements of resjudicata ale clearly satisfied here. Plaintiffs (and their counsel)
should not be permitted to bring repetitious class actions challenging the validity of the same
Ordinance and tl7e same Statute after those in privity with them, representing the same interests,
went to judgment on the merits, simply beca~ise they are unhappy with the earlier outcome. It is
this waste of resources and judicial time (to say nothing of forum slopping) that the doctrine of
res judiccrtu is intended to prevent. Accordingly, this Court should decline Plai~itiffs' invitation
to revisit the issues already decided in Keating, or which could have been presented there, and
dismiss this case on f-esjudicata grounds.s
II.

PLAINTIFF CLARKE'S CLAIMS ARE BARRED BY THE 5-YEAR STATUTE


OF LIMITATION.(SECTION 2-619(a)(5))
Clarke is the only Plaintiff who claims to have received a red light camera ticket prior to

the effec#ive date of the Statute. His claims, however, which are based on a red light camera
ticket. issued in January 2005, art barred by the applicable statute of limitation. Indeed, on April
18, 2012, when this case was first filed, there were no longer any timely claims that any person
could bring related to redlight camera tickets issued prior to May 22, 2006.
A claim for the refund of an unconstitutionally imposed fee or charge is governed by the
five year statute of limitation found at 735 ILCS 5/13-205. Si~n~dat~ce Domes, Inc. v. Cnty. of
Du~'crge, 195 Ill. 2d 257, 282 (2001).

All claims seeking "a return of money," i~hether

characterized as legal or equitable, are subject to this bar. Id. at 284. The limitation period begin
to run "when facts exist which authorize one party to mail~tain an action against another." Id. at
s Plauataffs Sullivan and Gernaga are further precluded from bringing claims its t1~is case by their
prior red light camera litigation with tl~e City, cases i 1 MI 625329(Gernaga v. City of Chicago) aid 12
M1 625424(Sullivan v. City of Chicago), because those cases have resulted in final j~dgrnents, and facial
challenges to #ha constitutionality of t~~e Statute and Ordinance Gould lave been broaght in those cases.
The operative pleadings and judgment orde~s from those cases are at#ached as Group Exhibit 7.

~~

266 (quoting Davis v. Munae, 235 III. 620, 622 (1908)). A plaintif'f's claim that an ordinance is
unconstitutional begins to run, ~at the latest, when that plaintiff is ticketed under the challenged
ordinance. See Lamar Whrteco Outdoor Corp.v. City of West Chicago, 355 Ill. App. 3d 352, 3b4
(2d Dist. 2005)(constitutional claim ripens upon issuance of ticket seeking to enforce challenged
law against plaintiff; Wapella Educ. Assn v. Ill. Educ. Lczbo~ Relations Bd., 177 Ill App. 3d
153, 168 (4th Dist. 1.988)(cause of action accrues at time of wrongful act). And "a limitation
period till not await commencement until a plaintiff has assu~anc~ of the success of an action."
Sun~dcrnce Homes, 195 IlL 2d at 2b6.
In Sundance Homes, the Supreme Court explained that "statutes of limitation are valid
procedural restrictions which may be invoked. to bas a meritorious claim for a refund, even when
that claim is based upon a ...statute that has been held unconstitutional." 1.95 Ill. 2d at 270.
"The purpose of a statute of liizlitation is to discourage the presentation of stale claims and to
encourage diligetzce in bringing of actions." Id. at 265-6b. "The purpose ... is not to shield a
wrongdoer, but is to provide the defendant with a sufficient opportunity to investigate the factors
upon wllicil his liability nlay be based while such evide~lce is still ascertainable." Pfezfe~~ v. Bell
& Ho~a~ell Co., 53 Ill. App. 3d 26, 27(lst Dist. 1977)(citations omitted).
Here, Clarke was ticketed in January 2005. Compl. 203. Clarke's claims all flow from
the issuance of that ticket. See id. ~ 202-214. Each claim Clarke now asserts accrued when that
ticket was issued and could have first been brought by Clarke in 2005. Clarke did not become a
plaintiff in this suit until December 22, 2014nearly te11 years after his claims accrued. Because
Clarke's claims are untimely, they must be dismissed pursuant to 735 ILCS 5/2-619(a)(5).

III.

THE STATUTE DOES NOT VIOLATE THE ILLINOIS CONSTITUTION.


(SECTION 2-615)
A.

The Statute Is Not Special Or Local Legislation.

The Illinois Constitution provides that "[t]11e Gene~al Assembly shall pass no special or
local law when a general Iaw is or can be made applicable." Ili. Const., art. N,~ 13. This does
not prohibit all legislative classifications; in particular, population and territorial differences are
well-accepted reasons justifying classification. See, e.g., N. Ill. Horne Builder^s Ass'r~, Inc. v.
Cnty. ofDu~'age, 165 Ill. 2d 25, 39-40 (1995); Cutinello v. Whztley, 161 IlL 2d 409, 417; 418-19
(1994). There is a strong presumption in favor of the constitutionality of legislation, and the
party challengizig the legislation has t11e burden of'showing the law is unconstitutional. See, e.g.,
Chicago Nat'l League B~rll Club, Inc. v. Thorl~pson, 108 Ill. 2d 357, 368 (1985).
The rational basis test applies to classifications challenged as special or local legislation
so long as, like here, there is no fundamental right or suspect class at issue. See, e.g., Cutinello,
161 Ill. 2d at 417; Chicago Nat'l League, 108 I1L 2d at 368. The rational basis test requires the
court to inquire whether the statutory classification is rationally related to a legitimate
govermnent interest. Id. When the classification is based on population or territorial differences,
the law should be upheld "where founded on a rational difference of situation or condition
existing in the persons or objects upon which [the classification] rests and there is a seasonable
basis for the classification in view of the objects and purposes to be accomplished." Chicago
Nat'l League, 108 Ill. 2d at 369. See also Cutinello, 161 Ill. 2d at 418. Thus, a statute must be
upheld "if any set of facts call be reasonably conceived which justify distinguishing the class to
which the law applies from the class to which the statute is inappizcable." Cutinello, 161 Ill. 2d
at 418. Whether a rational basis exists is a question of law, which may be decided on a motion to
dismiss, Till. ofSchaumburg v. Doyle, 277 Ill. App. 3d 832, 841-42(1st Dist. 1996).

~~

Under these standards, the Statute clearly passes constitutional muster. A combination o~
territorial and population differences sets apart the eight selected counties, and the municipalities
within their borders, from all other localities in Illinois. These are the eight most populous
counties nearest to the two Largest cities in the region Chicago and St. Louis. Chicago is in
Cook County, and Lake, McHenry, Kane, DuPage, and Will Counties are the five "collar"
counties immediately surrounding Cook, See Map of Illinois (attached as Ex. 8).6 Similarly,
Madison and St. Clair Counties are directly outside of St. Louis. Id. The General Assembly
reasonably could have believed that the combination of large populations, closely-spaced
municipalities, and numerous ~n~ell-traveled roads connected to these two major urban centers
results in higher traffic volume in the eight specified counties, and that this, in turn,
disproportionately leads to red light violations in these areas. Accordingly, it was rational to
authorize additional enforcement techniques for these jurisdictions. Use of cameras in addition
to police officers and adr7linistrative adjudication as well as circuit court process facilitates
enforcement in areas ~~here red light violations are likely more frequent and numerous.
Plaintiffs cannot show that the Statute lacks a rational basis. They cozzfuse the real
classification at issue by mischaracterizing it as applying to municipalities, rather than counties.
See, e.g., Compl. ~ 144, 150. They contrast examples of small cities that may adopt red light
camera systems with larger cities that cannot. Id. ~~'~( 137-43. But the Statute clearly authorizes
"the counties of Cook, DuPage, Kane, Lake, Madison, McHenry, St. Clair, and Will and .. .
municipalities located within tha.se countzes" to enact red light camera ordinances. 625 ILLS
5/11-208.6(m)(emphasis added). The p~ri~zission granted to these particular municipalities and
counties is firmly Iinked by the Statute to v~rl7ere t17e counties are located. Even the smallest
~ This Court may take judicial notice of maps, includi~lg those slowing county limes. Hinshaw v.
Coach~r~~er~ Ii~~dus., .Ii~c., 319 Til. App. 3d 269, 272 i~.2(1st Dish. 2001).

-10-

m~znicipaiities in these regions are different fion1 municipalities like Springfield, Peoria, and
Rockford, that have large populations but are not located within regions containing the same
traffic, roads, density, and proximity to Chicago or St. Louis. See people ex rel. Cnty. of
DuPage v. Smith, 2i Ill. 2d 572, 578 (1961)("proximity to great cent[er]s of population may
present a reasonable basis for classification").
The other differences that Plaintiffs complain about that Kankakee is closer to Chicago
than is Harvard, and that Springfield, Peoria, and Rockford ate larger than Lenzburg or other
municipalities in Madison, St. Clair, azld the other selected coutzties, see Compl. ~'~ 137-43 are
irrelevant for the same reason.

Plaintiffs' complaint that there is no rational basis for

distinguishing municipalities based on the county in which they are located ignores the wellsettled principle that "mathematical precision in creating a classification is not required."
Cutznello, 161 IlL 2d at 421; accord Chicago 1Vat'l League, 108 IlL 2d at 372 ("Classifications
are not required to be precise, accurate or harmonious so long as they accomplish the legislative
purpose"). There "will always [be] another county that could have been included in a
classification;" this does not invalidate the classification because classification, by its nature,
"requires that some persons who have an almost equally strong claim io favored treatment be
placed on different sides of the line." Cuti~~ello, 161 111. 2d at 42L That "the line might ha~~e
been drawn differently at some points is a matter for legislative, rathe~~ than judicial,
consideration." Id. Moreover, tl7e "legislature may ...address problems ozle step at a time."
C1~icago Nat'l League, 108 Ill. 2d at 371. For example, Kendall County, with its fast-growing;
municipalities, see Compl.'~ 142, play be added in the future if the General Assembly determines
there is a reason to do so.
Cutinello decisively rejected the very azguments Plaintiffs attempt to raise here. There,

-11-

the plaintiffs challenged a statute permitting DuPage, Kane, and McHenry Counties to impose a
tax on individuals selling motor fuel at retail. See 161 Ill. 2d a~ 413. They claimed that "the
statute should have included Lake and Will Counties," which, Iike t11e others, "are adjacent to
Cook County ...[and] were similarly experiencing rapid population growth." Id. at 420. Thee
further claimed that "in berms of absolute population growth, Lake County was ranked seco~ld"
among the five counties, beating out two of the tl~ee selected counties. Id. at 421. The court
rejected these arguments, ~ndin~? a rational basis to limit the stature to the tluee selected counties
on the ground that the legislature is entitled to choose where to draw the line, even if other
counties could have been included. See id. at 421-22. "To hold otherwise ~~ould make it more
difficult for the General Assembly to pass legislation addressing the transportation needs of
specific geographic areas of the State." Id. at 422.
The Cou1~t emphasized that legislation is not considered "special" merely because it
opezates in only one part of the state and that "[t]ransportation needs, by their nafure, involve
territorial differences." Id. at 419. And, finding that. "population and territorial differences
constitute reasonable bases for addressing transportation and traffic problems," id., it firmly
rejected the idea that plaintiffs and. courts can second-guess the legislature:
"Review of statistics wi11 always reveal another county that could have been
included in a classzfication. For this reason, a legislative choice is not subject to
cotut~oom fa~ctfinding and may be based on rational sp~cula~ion unsupported by
evidence or empirical data. Transportation problems may exist to a lesser d~gre~
in other pa~~ts of the State than in the Counties [included in the statute at issue].
However, "the Legislature is not bound. Co pass ogle law meeting every exigency,
but may consider degi~es of evil."
Id. at 421-22 (citations omitted), quoting S~~ith, 21 Ill. 2d at 579. Plaintiffs cannot meet their
burden of showing that there is no conceivable rational basis for the Statute, and their special
legislation claim should be dismissed.

B.

The Uniformity Clause Does Not Apply To The Statute, And Even If It
Did, The Statute Passes The Test As A Matter Of Law.

Plaintiffs' uniformity clause argument also fails because the uniformity clause applies
only to "taxes or fees," and the civil penalty authorized by the Statute is neither of these. Under
the uniformity clause, "[i]n any last classifying the subjects or objects of non-property taxes or
fees, the classes s13a11 be reasonable and the subjects and objects within each class shall be taxed
uniformly." Ill. Const., art. IX, 2 (emphasis added). Courts mast give fhe language of the
constitution its plain and ordinary meaning. Maloney v. Bowe~~, 113 Ill. 2d 473, X78 (1986).
By its express terms, the uniformity clause only applies to "non-property taxes or fees."
Ill. Const., art. IX, ~ 2. "Taxes are an enforced proportional contribution levied by t11e State by
virtue of its sove~eignty for support of the government." Smith, 21 Ill. 2d at 583. "A fee is
defined as a `charge fixed by law for services of public officers' and is regarded as compensation
for the services rendered." Cirockef >>. Finley, 99 Ill. 2d 444, 452(1984)(quoting Black's Law
Dictionary 553 (5th ed. 1979)). The Statute, however, describes a penalty, not a tax or fee.
Indeed, it plainly states, "[t]he motor vehicle owner is subject to a civil penalty not exceeding
$100, plus an additional penalty of not mare than $100 for failure to pay fhe original penalty in a
timely manner, if the motor vehicle is recorded by an automated traffic law enforcement
system." 625 ILCS 5/11-208.6(j)(ez~7phasis added). A "penalty is in the natltre of punishment
for the nonperformance of an act or for the performance of a7i unlawful act." Hoffn~cznn v. Cla~~k,
69 Ill. 2d 402, 418 (1977). That is exactly what the fine imposed for a red light violation is: a
penalty for the performance of an unlawful act. Thus, the uniformity clause does not apply here.
But even ifthe penalty authorized by the Statute is viewed as a #ax or fee, it meets the
~ The distinction between fins and penalties is irrel~'vai~t in this case because, depending upon
the context, Vines ar~ subsets of pezialties or tl~e terms may be used syno~~yrnously. See Wilkes v.
Dee~~eld-13a~~~nockburn Fire Prot: Dzst., 80 Ill. App. 3d 327, 329.(2d Dist. 1979).

-13~

standard. applied to challenges raised under the uniformity cla~use.8 A tax or fee complies with
the uniformity clause so long as its classification (1)is "based on a 7~ea1 and substantial difference
between the people tamed and those not taxed," and (2) bears "some reasonable relationship to
the object of the legislation or to public policy." AllegNo Se~v., Ltd. v. Metro. Pies & ~xpositio~7
Aut1i., 172 Ill. 2d 243, 250-51 (1996). There is a substantial difference between pe~sons subject
to penalties autho~ized by the Statute and those who are not: only owners of vehicles driven in
the eight specified counties may be subject to civil penalties for violations recorded by a red light
camera. This classification has a reasonable relationship to the object of the legislation, which is
to provide a supplemental ei~forcernent option for those populous and traffic-congested counties.
"Statutes bear a presumption of constitutionality, and broad latitude is afforded to
legislative classifications for tatixlg purposes." Alleg~~o, 172 Ill. 2d at 250. Under this lenient
standard of review, it is "only necessary for the defendants to suggest a conceivable relationship
between the tax and the puipase of the act." Arangold Coip. v. Zehndei~, 329 Ill. App. 3d 7$1,
798 (1st Dist. 2002), aff'd, 204 Ill. 2d 142 (2004); see also Moran, 303 Ill. App. 3d at 474-75.
The object of the Statute is apparent from the title of the article of the Vehicle Code of which the
Statute became a part: "Obedience to and effect of traffic laws." 625 ILCS 5/11-201 et seq. See
PNimeco Pees. Conzr~~c 'ns, L.P. v. I.C.C., 196 Ill. 2d 70, 92 (2001)(determining object of tax
provision by looking to title of first section of Act).
As shown above, the General Assembly could reasonably have concluded that the eight
counties in which red light cameras are allowed have lev~is of traffic density and congestion
where such systems would. improve traffic safety. The uniformity clause "is not a precise
formula for drawing tax lines, nor is it a license for eoutts or litigants to claim they can draw
8 Courts may de#eimine the consti~utiollality of a statute u~~der the uniformity clause on a motion
to dismiss. See, e.g., Morar7 Transp. Co~l~, v. Strogei, 303 I11. App. 3d 459, 474-75 {1st Dist. 1999).

better taxing lines than the General Assembly." Ay~ar~gold, 329 Ill. App. 3d at 796. Plaintiffs'
uniformity clause challenge should be dismissed.
C.

Plaintiffs Fail To State An Equal Protection Claim.

Plaintiffs also claim that the Statute "arbitrarily deprives motorists" off' equal protection
"based on nothing mare than tike fortuity of where they operate their motor vehicles." Compl.
'~( 279. Plaintiffs do not specify an5~ identifiable group or suspect class; this claim is merely a
restatement of their special legislation challenge. For the reasons stated above with regard to
special legislation and uniformity, the Statute passes the rational basis test, and Plaintiffs' equal
protection claim should be dismissed.
IV.

PLAINTIFFS FAIL TO STATE A VALID CLAIM CHALLENGING THE


CITY'S AUTHORITY TO ENACT THE ORDINANCE. (SECTION 2-615)
Because the Statute is constitutio~lal, see supra Part III, the City was explicitly authorized

by the Statute to enforce the Ordinance against Kata, Sullivan, Rami, and Gernaga, who each
received their tickets in or after SepteiY7ber 2010.9 See Com~al. '~ 175, 193, 21b, 229. Plaintiffs
claim that ifthe City's home rule powers were preempted in 2003, the~l the Ordinance required.
repeal and reenactment following passage of the Statute in 2006, and the City did not do so.
This is wrong on both counts.

It is clearly established that preempted ordinances are

automatically revived by the repeal of preemptive legislation. Further, the City Council's
amendment of the Ordinance in 2007 to explicitly reference the Statute amounts to reenactment.
Therefore, it is unnecessary for this Court to address home rule preemption from. 2003-200b,
because any claims related to the Ordinance during that period are time barred, see supsa Part II.
And to the extent. home rule authority is at issue, the City at all times has had independent home

9 Clarke's elair~, relating to a ticket issued ill Januaay 2005, Compl. ~ 203, is untimely as
discussed in Part II above.

-15-

rule authority to enact the Ordinance.


A.

To The Extent The Ordinance Was Preempted From 2003-2006,


Thy Statute Aatomatically I2evi~red It in May 2006.

Contrary to Plaintiffs position, it is clearly established in Illinois that preempted


ordinances are automatically revived by the repeal of preemptive legislation. In Lily Lake Road
Defenders v. County ofMcHen~r~y, 156 Ill. 2d 1 (1993), the Supreme Court held that an ordinance
on the books may be enforced prospectively without being re-enac#ed after the legislature
enacted legislation removing state preemption. Id. at 13-15. As the court explained:
[a]n ordinance which is preempted is not null and void. Instead, the preempted
ordinance is simply suspended or rendered unenforceable as long as the
conflicting legislation of a superior legislative body remains in effect. Repeal of
the preempting legislation, however, revives or ~einstates the preempted
legislation without express reenactment.
Id at 15. Similarly, in City ~f Burbank v. Czaja, 331 Ill. App. 3d 369 (lst Dist. 2002), the
defendants argued that the city should not be able to enforce ordinances bar~ing the keepiflg of
carrier pigeons on residential property because the ordinances, although initially within the city's
power to el7act, had subsequently been preempted, rendering them void ab initio. See id. at 37576. The General Assembly later reversed course on preemption and again permitted the city ~o
ban carrier pigeons. See id. at 376. Tile court rejected the argument that the city had to re-enact
its ordinances. Id. As the court explained, preemption did not repeal the cit}r's ordinances; it
simply suspended their operation. See id. at 376-78. Removal of that preemption accordingly
revived the ordinances. Id. "[W]hat preemption does" is to render an ordinance "dormant," not
null and void. Id. at 378; see also Yonikus v. Indus. Conzin'n, 228 Ill. App. 3d 333, 336-37 (5th
Dist. 1992)(State did not need to ie-enact a statute barring judicial review of the decisions of the
Industrial Commission afte~~ tl3e 1970 Illinois constitution abolished sovereign immunity). These
principles especially apply here, where the intervening enactment is intended to afford local

-16-

governments t11e very power ghat the municipality exercised in the preexisting ordinance.
No court ever held that the 2003 Ordinance was preempted, and laws are presumptively
valid. To the extent that there was any uncertainty about the extent of home rule preemption of
the Ordinance prior to 2006, the Statute eliminated it and automatically revived any preempted
portions of the Ordinance. At that point, the Ordinance became enforceable prospectively.
B.

If Re-Enactment Was Required, The City Council Has Done So.

Even if re-enactment of the Ordinance after the passage of the Statute was required, the
City Council has done so. It is settled. that "when portions of an old law are repeated. or
re-enacted in an amending act, they are regarded as a continuation of the existing law," and
amendatory legislation "is . . .construed as continuing in effect unchanged portions of the
original act." Yonikus, 228 Ill. App. 3d at 336. In 2007, the City amended the Ordinance to
explicitly reference the Statute. See Council J, I~Tov. 13, 2007, at 14999, 15003-07 (amending
five of the seven sections). The City has amended the Ordinance multiple times since then. See
id. Dec. 2, 2009, at 78837, 78879; id. Nov. lb, 2011, at 13798, 13890-91; zd. Apr. 18, 2012, at
23762, 23777-81 (cited pages attached as Ex. 9). Clearly, the City Council's indent has been to
continue the law in effect, to take advantage of the state legislature's authorization for red light
camera ordina~lces, and to co-ordinate with the Statute.
C.

The City Has Inherent Home Rule Authority To Adopt The Ordinance.

Under the Illinois Constitution, a municipality with a population exceeding. 25,000 is a


"home rule unit" and is granted authority to "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...." Ill. Const., art. VII, 6(a).
This provision was intended to give home-rule units "the broadest pov~rers possible" 10 regulate
matters of local concefn. Palm v. 2$00 Lake Shore Dive Condo. Ass'~a, 2013 IL 110505, 30

-17-

(citing Scadtoi2 v. City ofDes Plaines, 153 Ill. 2d 164, 174 (1992)). Regulating tiaffic safety for
public welfare on Chicago streets pertains to the City's government and affairs. See,. e.g., People
ex Nel. Ryan v. Vill. ofHanover Pa~~k, 311 Ill. App. 3d 515, 525 (1st Dist. 1999)(acknowledging
that home-rule municipalities have the ability to ei7aet traffic ordinances).
The Ordinance established an "Automated Red Light Camera Program," allowing the
City to use cameras to identify vehicles that drive through red lights. See Ex. 2 at 4349. The
City Council determined that, by capturing violators on camera, the Ordiizance would
"co~s~plement enfo~~cement ofexisting laws by pei7l~itting the imposition of sanctions even when
law enforcement officers do not observe a violation of law and thus car~loti charge the driver of a
vehicle with a violation of the Illinois Vehicle Code." Id. at 4351 (emphasis added). The City
concluded that using cameras at certain intersections ~rould increase public safety by deterring
violators, thereby decreasing the numbe~~ of serious accidents caused by dri~~ers who run red
lights. Id. Accordii~giy, the Ordinance falls squarely within the City's proper exercise of its
home rule authority.
D.

The Ordinance Has Never Been Specifically Preempted.

Home-rule authority may be limited by the General Assembly, either by reserving the
relevant regulatory power for itself, or by pzohibi~ing or limiting i#s exercise by home-rule units,
but "[t]o restrict the concurrent exercise of a home rule power, the General Assembly must enact
a law specificalXy stating home rule authority is limited." Palfn, 2013 IL 110505,' 32 (emphasis
in original). Ill. Const., art. VII, 6{h), (i). The legislative intent to preempt must be explicit;
even "[c]omprehensive legislation is insufficient to declare the state's exercise of power to be
exclusive. To meet the requirements of section 6(h), legislation must contain express language
that the area covered by legislation is to be exclusively controlled by the State." City ofChicago
v. Roman, 184 Ill. 2d 504, 517 (1998). And even wheal there is express preeni~tion language,

local ordinances which do not conflict with the state laws are still valid. City of Wheaton v.
Loerop, 399 Ill. App. 3d 433, 436 (2d Dist. 2010)(city may enact minimum penalty for DUI
when no minimum is set in Vehicle Code). To determine whether an ordinance conflicts with a
state Iaw, courts examine whether the ordinance "infringes upon the spirit of the state law or is
repugXlant to the policy offhe State." Hanove~~ Par^k, 311 IlI. App. 3d at 526.
Plaintiffs' vague pleading that the Ordi~lance is pre-empted by "various provisions" of the
Vehicle Code, see CoinpL ~( 281, fails to identify a specific statutory provision which at any
point preempted the City's authority to enact any portion of the Ordinance. Other than citing the
1992 Illinois Attorney Geizeral Opinion and the Hanovef~ Park decision, Plaintiffs do not specify
which statutory provisions expressly pre-emp~ the Ordinance.10

On this basis alone, their

preemption claim fails.


Indeed the Vehicle Code has no provision which specifically preempts the City's
authority to enforce the Ordinance, and there was no provision specifically preempting adoption
of the Ordinance in 2003. Other than the 200b Statute, there is no state legislation prohibiting or
limiting the use of red light cameras by home rule units to ensure owners did not allow their
vehicles to be used to violate red lights. The Ordinance is also fully consistent with the traffic
safety policies underlying the Vehicle Code.
Plaintiffs rely on the holdil7g of Ha~7ove~ Pa~~k to make their case (for the period prior to
the Statute), but the facts are clearly distinguishable. There, several borne-rule and non-homerule municipalities had enacted alternative traffic programs that allowed police to issue a "Pticket" instead of a uniform traffic citation to drivers who we~~e stopped by police fox a variety of

ro P1aiz~tx~fs' reliaxace on tlae .Illinois Attor~aey Gelaeral's 1992 opinion {Compl. 3l) is misplaced
for tlae sane reasons as t~~~ir r~li~:nce on Hanove~~ Park. See. Motor Vel~iales; Municipal Alternative
Traffic Ticket Program, I11. Att'y Gen. Op. 92-013 (Jun. 22, 1992)(attached as Ex. 10).

-19-

traffic offenses under the Illinois Vehicle Cade, alid also allowed drivers to pay a settlement fee
to the municipality iii lieu of colut adjudication. 311 I11. App. 3d a~ 518-20. The Appellate
Court found that these ordinances were in conflict with the Vehicle Code because police officers
in other parts of the stake were requixed to make arrests for violations of the Vehicle Code, and
also because the offenses committed by drivers in the defendant municipalities were nod being
reported to t11e Secretary of State. Id. at 526-29.
He~~e, the Ordinance does not impact the obligation of a police officer who witnesses a
red light violation to write a uniform traffic citation. Indeed, under the Ordinance, if a uniform
traffic citation is issued by a police officer fog the same red light violation that is captured by a
camera, tl~e police-issued citation takes precedence. See Ex. 2 at 4352, ~ 9-102-020(a)(1)(now
codified at MCC 9-100-060(b)(2)(i)). The Ordinance provides an addztzonal method for
enforcing traffic laws related to red lights hen no police officer observes the violation, not an
alter^native when an of~ice~ would otherwise write a ticket. Iii this way it furthers the spirit and
purpose of the Vehicle Codeto promote compliance with traffic laws. For this reason, the
Ordinance is wholly distinguishable from the programs struck down in Hanover Paf~k and is
much closer to the minimum DUI penalty upheld in Loei~op. There, the court recognized that a
home zule mul~icipality may "impose greater restrictions" on particular activities than the State,
specifically a minimum penalty for a DUI violation, when no minimum is set in the Vehicle
Code. Loe~op, 399 Ill. App. 3d at 436 (citing Peters v. City ofSp~~in~eld, 57 Ill. 2d 142, 152
(1974)). Such an additive requirement is not "repugnant to the state's general policies." Id.
Plaintiffs also contend that the Ordinance is inconsistent with the Vehicle Code because
a violation of the Ordinance does not result i11 t17e issuance of a uniform traffic citation, nor
trigger reporting the offez7ss to the Secretazy of State. Con~pL ~~~( 41-~7. But this simply points

out that tl~e City's regulatory system is different, not that it is preempted. The Ordinance is
distinguishable from the Vehicle Code because it in7poses an obligation on the f~egistered ownej
of a vehicle to make sure that vehicle is not used to violate a ~~ed light. See MCC 9-102-020(a).
The Vehicle Code imposes responsibilities on drivers, 625 ILCS 5/11-305(a), 5/11-306(c), and
sets a penalty ~~here a police officer witnesses a red light violation and can readily identify the
vehicle's driver by sopping the vehicle and requesting the driver's license, id. 5/16-104.
Under the Ordina~~ce the vehicle's ~~egis~tered owner is charged with violating the Ordinance,
iegardless of whether the owner was driving the vehicle at fhe time of the violation. See MCC
~ 9-102-020(a).

Thus, unlike Hanover^ Pajk, the Ordinance does not interfere with. the

responsibility of police offices to issue uniform traffic citations for violations they witness.
Violations of the Ordinance are not "reportable offenses" to the Secretary of State under
section S/6-204 of the Vehicle Code, just as reportable offenses under 5/6-204(a)(2) do not
include regulations governing standing or parking of vehicles. 625 ILCS 5/b-204(a)(2). The
purpose of such reporting is to give the Secretary of State the ability to determine whether to,
among other things, revoke or suspend a person's driver's license and determine whether such
individual is fit to safely operate a vehicle. Id. This purpose would not be served if tickets based
onirresponsible ownership, not necessarily iu7safe driving, are reported.
Finally, P1a3~7tiffs allege that the City improperly adjudicated violations of the Ordinance
through its o~~via administrative system, rather tha1~ throltgh the state courts.~ 1 See Con1p1. ~'~ 2224, 100, 202. Plaintiffs rely on Section 1-2.1-2 of the Illinois Municipal Code, which authorizes
administrative adjudication by home rare municipalities, generally, but not as to any offense

" It is long established that the City's administrative hearing pi-oceduzes are coras~itutional. See
T/af~ Hay~ken v. City of Chicago, 103 F'.3d 136 (7th Cir. 1999); Vaj~ Harkefa v. City of Chzcc~go, 305 Ill.
App. 3d 972(1st Dist. 1999).

-21

under the Vehicle Code or a similar offense that is a traffic regulation governing the movement
of vehicles, and of reportable offenses under Section 6-204 of the Vehicle Code. 6S ILCS
5/1-2.1-2. This reliance is misplaced fo~~ several reasons.
First, section 5/1-2.1-2 specifically allows the City to adjudicate municipal code
violations that are within either its statutory or home-rule authority. As discussed above, the
Ordinance was within the City's home-rule power prior to May 2006, and it has been within both
its home-rule authority and its statutory authority after that. Second, Plaintiffs were ticketed
under the Ozdinallce, not the Illinois Vehicle Code. As the Statute clarified, "`a violation for
which a civil penalty imposed under [625 ILCS 5/11-208.b(j)] is not a violation if a traffic
regulation governing the movement of vehicles."' Fisch~etti v. Vill. ofSchaunzbu~g, 2012 IL App
(lst) 111008, 7 (quoting Statute). Third, section 5/1-2.1-10 acknowledges that home rule
municipalities have authority to create other types of administrative adjudication systems. 65
ILCS 5/1-2.1-10.
V.

PLAINTIFFS FAIL TO ALLEGE A DUE PROCESS VIOLATION. (2-615)


Plaintiffs also challenge the Ordinance as a violation of picketed vehicle owners' due

process rights because' it imposes fines without any evidence that the owners committed
infractions. Compl. ~ 282. As a preliminary platter, Plaintiffs cannot bring this claim because
no Plaintiff claims that his or her ticket was issued when soflzeone other than a registered owner
was driving the vehicle. Further, Plaintiffs fail to specify whether their substantive ar procedural
due process rights were supposedly violated.
In a substantive due process facial challenge ~o the Ordinance, the court again applies the
rational. basis test, because there is no fundamental right or suspect class at issue. Napleton v.
Vill. ofHinsdale, 229 Ill. 2d 296, 307-08 (2008). Under that test, an o~dinance will be upheld as
long as i~ "bears a rational 3~elationship to a legitimate legislative purpose and is neither arbitrary
-22-

nor unreasonable." Id. at 307. "If any set of facts can reasonably be conceived to justify the
[legislative decision], it will not be construed" as violating substantive due process. Wauconda
Fzre Prot. Dist. v. Stonewall OrchaJ~ds, LLP,214 Ill. 2d 417,434(2005).
Illinois courts have long rejected the notion that ordinances imposing liability on
"inzlocent" vehicle ow~7ers violate substantive due process. See, e.g., City of Cl2icago v. Hertz
Commercial Leasing Cor^p., 71 Ill. 2d 333, 346 (1978)(upholding parking ordinance attaching
liability to vehicle owner with no innocent owner defense); People v. Jaudon, 307 Ill. App. 3d
427, 436-37(1st Dist. 1999)(upholding fine imposed on vehicle owners where contraband found
in car). In fact, in Idris v. City of Chicago, 552 F.3d 564 (7th Cir. 2009), the Seventh Circuit
rejected this exact argument ~~ith respect to the Ordinance, finding it rational to fine the vehicle
owner for several reasons:(1)a camera can more reliably show which vehicle is at fault, but not
as easily identify the actual driver; (2) a photographic evidentiary system reduces the cost of
enforcing the violations and increases the number of offenses detected;(3)"legal systems often
achieve deterrence by imposing fines" without. fault; and (4) owners will be more cautious in
entrusting their cars to others, and can pass on the expense to the actual violator. 552 F. 3d at
566. This reasoning was expressly adopted by the Illinois Appellate Court in Fischetti, where
plaintiff challenged that village's red light camera ordinance. The Appellate Court affirmed
summary judgment for the village and rejected the claim that ticketing the vehicle o~mer, rather
than the driver, violated substantive due process. 2012 IL App (lst) 111008, ~ 16-17 ("the
federal court's reasoni~ig is directly applicable to a substantive due process argument based on
the Illinois Constitution and we adopt it as our own.")
Plaintiffs' procedural due process claui3, if they plead one at all, is just a variation on
their substantive due process claim. What Plaintiffs really cha11e~1ge is not the lack ofprocess,

23

but the substantive liability the Ordinance places on vehicle ou~lers, even if they were not
driving the vehicle at the time. The Illinois Supreme Court has denied just. this type of attack on
the substantive provisions of a statute on procedural due process grounds:
The defendants' position assumes that an essential element of the ordinance is the
presumption that the owner was the person who parked the vehicle. As we have
previously stated, the ordinance does not purport to incorporate that presumption
into the substa~~tive offense. The two elements of the substantive offense are
rebuttable by a showing that a violation was riot committed or that the defendant
was not the owner at the tiil~e of the violation. The constrtutional requirement of
procedural due process is satisfied because the defendant is not precluded from
rebutting either element of the substantive offense.
Hef~tz, 71 Ill. 2d at 347. So too here. The City's ordinances provide at least two additional ways
of rebutting the red light offense: that the vehicle was reported stolen, or that it was leased under
a written agreement. MCC 9-100-060(b)(2). Accordingly, the Ordinance does not violate
Illinois procedural. due process. See .~'ischetti, 2012 IL App (1st) 111008, 16 (rejecting
procedural due process challenge to Schaumburg's red light ticketing ordi~lance.)
VI.

PLAINTIFFS FAIL TO STATE A VALID CLAIM WITH RESPECT TO THE


TIMING OF YELLOW LIGHTS. (SECTION 2-615)
In Count II, Plaintiffs seek declaratory judgments ghat two classes of red light camera

ticl~ets are void because the duration ofthe yellow light (e.g. "yellow change interval")
immediately preceding issuance of the ticket did not conform to the U.S. Department of
Transportation's Manual on Unifol~z Ti~affic Control Devices("MUTCD") or laws related to it;
they also seek a mandatory injunction compelling tl7e City fo adjust the timing of all its traffic
signals. Compl. at 45-46. Fatal to Plaintiffs' claims, however, is that neither the MUTCD nor
the identified statutes impose alegally-enforceable nlininlum yellow change interval because tha
MUTCD "describes the application of traffic control devices, but shall ~zot be a legal

-24-

r~equi~ernent for theif installation." MUTCD 1A.09(02) (2009 rev. 2) (emphasis added).~~
Further, the specific provision of the MUTCD which Plaintiffs cite is clearly designated as mere
"guidance." Id. 2D.26(14). When a provision of law is "intended only to express a goal or
objective, and not to state a specific command," a declaratory judgment action to enforce that
provision is properly dismissed. Blase v. State, 55 Ill. 2d 94, 98-100(1973).
Plaintiffs identify five federal sta~u~es, one federal regulation, and one Illinois statue that
purportedly require all of the City's traffic signals to comply with the MUTCD. Compl. '~ 16061.13 However, none of these statutes or regulations stand for the sweeping proposition that all
of the City's traffic sigYlals must fully comply ~~vitli the current edi~ioil of the MUTCD,and some
appear to be completely inapplicable.
The first federal statutory provision identified. by Plaintiffs provides that all traffic signals
installed on any road constructed with federal highway funds since 1944 require the approval of
the state department of transportation and the concurrence of the U.S. Secretary of
Transportation. 23 U.S.C. 109(d). Both may look to the MUTCD in reviewing a project. But
Plaintiffs have not alleged that any of the City's red light cameras are installed on such federallyfunded roads, that any traffic signal enforced by a red light camera was not approved by the
Illinois Department of Transportation ("IDOT") as required, or that the U.S. Secretary of
Transportatior~~ withheld his or her concurrence in such approval.

Plaintiffs' second federal

statutory provision prohibits the installation of "any informational signs" on "any Federal-aid
highway" other than ones conforming to the MUTCD. 23 U.S.C. 114(a). Plaintiffs make no

12 The 2009 edition of tl~e MUTCD became effective in 2010. See 74 Fed. R. 66730 {Dec. 16,
2009). Revisions to the 2009 edition were adopted in 2012. See 77 Fed. R. 28460 (May 14, 2012).
Relevant excerpts from the MUTCA are attached as ~~~ibit 11.
'3 T(ie Complaint also references 23 CFR 1.~8, but i~o such section exists.

-25-

allegations about informational signs.

Plaintiffs' third, fourth, and fifth federal statutory

provisions are even further afield, relating to funding for transportation projects for bicycles and
pedestrians, id. 217; the U.S. Secretary of Transportation's general rulemakirag authority, zd.
315; and the U.S. Secretary of'Tr~nsportatioil's authority to adopt uniform regulations for each
state's "highway safety program," id. 402(a)(2).
The federal regulation which adopts the MUTCD as a "standard for all traffic conh~ol
devices" recognizes that "substandard traffic control devices" will exist, and does not declare
them illegal or void. 23 C.F.R. ~ 655.603{a),(d)(1). Indeed, the MUTCD recognizes that "noncompliant devices on existing highways" that remain serviceable need clot be "brought into
compliance with the current edition of the National MUTCD" except as part of "systematic
upgrading" set forth in the state's highwa}~ safety prog~am.

MUTCD, Introduction ~ 22.

Further, the MUTCD explicitly states that it "shall not be a legal requirement for [the]
installation" of traffic control devices. Id. 1A.09(02). In examining the nature of the MUTCD,
the majority of courts have determined that the natio~lal MUTCT~ "is nothing more than a
guideline." Grabe~~ ~~. Czty ofAnkeny,656 N.W.2d 157, 162(Iowa 2003)(collecting cases).
The Illinois statute identified by Plaintiffs similarly fails to convert the guidance of the
M~ITCD into a mandate that is legally enforceable against the City. See 625 ~LCS 5/L 1-301.
That provision merely directs the Illinois Secretary of Transportation to adopt a version of the
MUTCD fog use in Illiliois. IDOT repealed the most recent rule adopting an Illinois manual in
1990, 14 I11. Reg. 3694 (Feb. 22, 1990){attached as Ex. 12), end has not adopted a new version
in accordance wit11 the Illinois Administrative Procedure Act, 5 I~I,CS 100/1-5, et seq. ("IAPA"),
see 92 Ill. Adnlin. Code 546 (repealed).14

'a To the exte~~t that TDOT has published an Illinois manual without complyialg wit13 the IAPA,
such document is witliaut legal effect. See S ILCS l00/5-6; Senr1 Park 11~ursing Ctr. v. Miller, 104 IIL 2d
-26-

E~~en assuming, arguendo, that Plaintiffs had some legal basis to enforce the guidance of
the current edition of the MUTCD against the City through a declaratory judgment action, the
MUTCD does not require what Plaintiffs claim it does. Section 4D.26(14) of the MUTCD
provides: "A yellow change interval should have a minimum duration of 3 seconds and a
maximum duration of6 seconds. The longer intervals should be reserved for use on approaches
with higher speeds." MUTCD ~ 4D.26(14). This sectio~~ is marked as "Guidance." Id. The
MUTCD describes "guidance" as "a statement of recon7mended, but not mandatory, practice in
typical situations, with deviations allowed if engineering judgment or engineeri7~g study indicates
the deviation to be appropriate." Id. 1A.13(O1)(B).

The MUTCD further recognizes that

yellow light duration may fluctuate "witihin the technical capabilities of the controller unit." Id.
4D.26(08). Thus, Plaintiffs' allegationsthat the City's yellow lights are set at either three or
four seconds (depending on legal approach speed), and that signal control equipment set to 3.0
seconds may fluctuate between 2.89 and 3.12 seconds--confirm that the City's yellow lights
conform to MUTCD ~ 4D.26(14). See Compl. 166 & Ex. D. Accordingly, Count II fails to
state a claim azid should be dismissed plu~suant to 735 TLCS 5/2-615.
VII.

PLAINTIFFS' CLAIMS ARE BARRED BY THE VOLUNTARY PAYMENT


DOCTT2INE. (SECTION 2-619(a)(9))
Plaintiffs Sullivan and Clarke allege that they paid their fines without challenging their

ticket at the administrative level. Con1p1. ~[~ 196, 206. Plaintiffs Kata, Rai11i, and. Gernaga allege
that they contested heir tickets at the administrative level, but were foutld liable and paid their
tickets instead of see~Cing administrative review in the Circuit Court. Id. ~ 185, 223, 235.
Aecordzngly, all Plaintiffs are barred from recovering based on the voluntary payment doctrine,

169, 181 (19$4)(any rule not adopted in conforma~ace with the rcquiremeiats of the IAPA is invalid and
unenforceable).

-27-

which dictates that money voluntarily paid as a fine, with knowledge of the facts, cannot be
recovered even if the authority to demand payment is later found to be unconstitutional or
invalid. See United Pfivate Detective and Sec. Ass'~~, Inc. v. City of Chicago, 56 I11. App. 3d
242, 244 (1st Dist. 1977); Be~g v. Czt~~ of Chzcago, 97 Ill. App. 2d 410, 421-23 (1st Dist. 1968)
(applying voluntary payment doctrine against plaintiffs who brought putative class action
seeking to declare traffic ordinances invalid).
In an attempt to avoid the voluntary payment doctrine, Plaintiffs claim their payments
were "not voluntary," and made "under coercion of law and under the threat of multiple adverse
legal consequences," Compl. ~ 86, including referral of unpaid tickets to debt collectors; possible
immobilization of then vehicles, or driver's license suspension if they are involved in five or
more i~ed light camera. violations. Id. '~ 90-95. Although the voluntary payix~ent doctrine will
not apply to payments made under duress, these allegations do not constitute duress as a matter
of law. Duress can be shown only where a "person, to prevent injury to himself, his business or
propez-~y, is compelled to snake payment of money which the party demanding has no right to
receive and no adequate opportufziry is affo~~ded the payor to effectively resist such demand."
Dr~eyfi~s v. Ameritech. Mobzle Cor~2nz., Inc., 298 Ill. App. 3d 933, 938 (1st Dist. 1998)(emphasis
added)(citations omitted).
If Plaintiffs had contested their tickets though the administrative process, they ~~vould
have incurred none of the adverse consequences they lisp until after the proceedings were
resolved against them. MCC ~ 9-1OQ-050 provides that the recipient of a violation notice under
the Ordinance ( 9-102-030) may: "(1) pay the indicated fine; ot~, in the manner indicated on the
notice, either (2)submit the materials set forth in Section 9-100-070 to obtain an adjudication by
mail; or (3) request an administ~ative hearing as sit forth in Section 9-100-080 to contest the

-28-

charged violation." MCC 9-100-OSO (emphasis added). The ordinance is very clear that if is
not until "after a determination of liability under this chapter has become final and the
respondent has exhausted o~~ failed to exhaust judicial procedures fog revze~v" that a final
determination of liability notice is sent, and the respondent becomes subject to collection
procedures for "a debt due and owing t17e cify" under section 2-14-103. MCC 9-100-100
(emphasis added). S~~e 13er~g, 97 Ill. App. 2d at 422 (payment is voluntary and no recovery is
possible "where, at the time of payment ...the accused has an option to pay the fine or to
appeal"). Because the plaintiffs had not appealed, t11e court held that the fines were paid under
mistake of la~~, i~ot under duress. See id. at 42~. Thus, Plaintiffs had a clear alternative to
paying tiie fine, Che payment they made was volu~ltary, and their claim for ~-esti~ution (Count III)
should be dismissed.
CONCLUSION
For the foregoing reasons, the City respectfully requests that. the Court dismiss Plaintiffs'
Second Amended Class Action Complaint in its entirety with prejudice.

Respectfully submitted,

Date: Februar}~ 10, 2015

STEPHEN R. PATT(JN,
it of icago
Corporation Couz~s l~r t
r,~o
..
F~, _
.
By
As start orporation Counsel

-29-

INDEX OF EXHIBITS
Exhibit 1 ..................... An Act concerning transportatior3, Pttb. Act 94-0795, 2006 Ill. Laws 1204
(amending the Illinois Vehicle Code,625 ILCS ~/1-100 et~ seq.)
Exhibit 2..................... Journ~al of the P~oceedings of the City Council of Chicago, Ill., July 9,
2003, at 4349(adding Chapter 9-1.02 ofthe Municipal Code of Chicago)
Exhibit 3..................... Municipal Cade of Chicago, Chapters 9-100 and 9-102(as amended)
Exhibit 4..................... Memorandum Opinion and Order entered August 2, 2011 {Hyman, J.)
Keating v. City of Chicago, Cir. Ct. Cook Cnty. No. 10 CH 28652
Exhibit 5..................... Keatzng v. Czty ofChicago, 2013 IL App (1st) 112559-U (unpublished)
exhibit 6..................... Amended Class Action Complaint filed April 11, 2011, Keating v. City of
Chicago, Cir. Ct. Cook Cnty. No. 10 CH 28652("Keating Complaint")
Exhibit 7A.................. Supplemental Specification of Errois filed July 2, 2012, Gernaga v. City
of Chicago, Cir. Ct. Cook Cnty. No. 11 Ml 625329
Exhibit 7B ................. Order entered December 14, 2012, Gernaga v. City of Chicago, Cir. Ct.
Cook Cnty. No. 11 Ml 625329
Exhibit 7C ................. Specification of Errors filed January 7, 2013, Sulli~~an v. City o~ Chicago,
Cir. Ct. Cook Cnty. No. I2 M1 b2S424
Exhibit 7D.................. Order entered May 16, 2013, Sullivan ~~. City of Chicago, Cir. Ct. Cook
Cnty. No. 12 M 1 625424
Exhibit 8..................... "Map of Illinois" from Illinois Secretary of State, Illinois Counties and
Incoipo~ated Muyzicipalities (July 2012).
Exhibit 9..................... Excerpts from the Jou~~nal of the Proceedings of the City Council of
Chicago, Illinois, including: (A) Nov. 13, 2007, at 14999; (B) Dec. 2,
2009, at 78837;(C)Nov. 16, 2011., at 13798;(D)Apr. 18, 2012, at 23762.
Exhibit 10 .................. Motor Vehicles: Municipal Alternative Traffic Ticket Program, Ill. Atty:
Gen. Op. 92-013 (Jun. 22, 1992)
Exhibit 11................... Excerpts from U.S. Dept. of Transportation, Manual on Zlnifor~tra Traffc
Control Devices(2009 rev. 2)
Exhibit 12................... Department of Transportation, Notice of Adopted Repealer, 14 Ill. Reg.
3694 {Feb. 22, 1990)