IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, CHANCERY DIVISION

TERIE L. KATA, MAUREEN SULLIVAN , NICHOLAS
CLARKE, BOHDAN GERNAGA and NIRAJ RAMI,
individually and on behalf of all others similarly
situated,
Plaintiffs,
v.
CITY OF CHICAGO, an Illinois Municipal
Corporation,
Defendant.

)
)
)
)
)
) Case No. 12 CH 14186
)
) In Chancery ( Class Action)
)
) Calendar 9
)
)
)
)

PLAINTIFFS BRIEF IN RESPONSE TO MOTION TO DISMISS

{00046399}

INTRODUCTION
The City adopted its Red Light Camera ordinance (the Ordinance) in 2003, despite various
statutes, backed by uniform decisional law, restricting its home rule authority to do so. This
rendered the Ordinance, and the ticketing program it created, void. The City, aware that its
Ordinance was likely unauthorized, and using its considerable influence, pushed an Enabling Act
through the General Assembly as legislative cover for its void program. (Second Amended
Complaint (Compl. 109) The City never repealed its void law, suspended its program, or enacted
a new camera ordinance, so the Enabling Act could not authorize the Citys program.
In any event, the hastily-revised Enabling Act itself is unconstitutional; it is the clearest
example of a local law that could be made general adopted in Illinois since the 1970
Constitution was ratified. It allows red light cameras in certain municipalities based on no functional
difference between the municipalities except for the county in which they lie; something that violates
the Article IV ban on local legislation, and something the Supreme Court has consistently rejected.
The Citys ancillary res judicata, statute of limitations, and voluntary payments defenses all ignore key
facts and controlling law and should not prevail.
Dismissal is improper unless it is clearly apparent that no set of facts will entitle the
plaintiffs to recover. Ill. Graphics Co. v. Nickum, 159 Ill. 2d 468. 488(1994) City defenses relying
upon facts outside plaintiffs Complaint must be supported by affidavit. 625 ILCS 5/2-619(a),
Kedzie & 103rd Currency Exch. V. Hodge, 156 Ill. 2d 112 (1993). In deciding this case, the Court should
not engage in public policy considerations or consider the financial effect of a ruling in plaintiffs
favor on a government body. In re Rosewell, 236 Ill. App. 3d 165, 169 (1st Dist 1992)
I.

There Is No Prior Judgment that Affects Plaintiffs Claims or Limits This Courts
Ability to Decide this Case
Chicago claims that this Court is bound by the Rule 23 Order in Keating v. Chicago. This is

plainly not so. Chicago does not, and cannot, dispute that, under Supreme Court Rule 23, the Order
1

in Keating is non-precedential and thus not binding on any Court. Chicago nonetheless seeks to turn
Keating into binding precedent here by claiming that the Plaintiffs claims were adjudicated in Keating
and thus barred by res judicata. No authority supports this proposition.
The Citys res judicata argument rests on an incorrect claim that 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. (Citys Memorandum in Support of
Motion to Dismiss, 20 Feb. 2015 (City Br.) at 4. Yet, in Schlessinger v. Olsen, 86 Ill. 2d 314, 319
(1981), the Illinois Supreme Court held that:
Even though it is true, as the appellate court pointed out, that if a motion to dismiss
a complaint is granted prior to certification, other suits may be brought by parties other than
the original named plaintiffs, that is a risk that the defendant assumes by filing a motion
to dismiss.
(emphasis added). Keating, as the City knows, was decided on a motion to dismiss prior to any class
certification. Under Schlessinger, the City assumed the risk of successive actions.
Further, the United States Supreme Court also recently concluded that treating unnamed
members in a putative, uncertified class action as parties to the original case for purposes of claim
preclusion in a later case ill comports with any proper understanding of what a party is. Smith v
Bayer, 564 US ___, 131 S. Ct. 2368, 2379 (2011). The Court noted that no party would even
advance the novel and surely erroneous argument that a non-named class member is a party to the class
action litigation before the class is certified. Id. (emphasis added), (quoting Devlin v. Scardelletti, 536
US 1, 7 (2002). This is not simply a matter of the requirements of Federal Rule of Civil Procedure
23 (sufficiently similar, in any event, to 735 ILCS 5/2-801 that federal decisions are considered
persuasive authority with regards to questions of class certification in Illinois. Avery v. State Farm
Mutual Auto Ins. Co., 216 Ill. 2d 100, 125 (2005)). Rather, as the Supreme Court has recognized, due
process concerns preclude application of a judgment to a person not a party to the original case
without the procedural safeguards of proper class certification. See Hansberry v. Lee, 311 U.S. 32, 412

46 (1940); see also Taylor v. Sturgell, 553 U.S. 880, 897-98 (2008); Parklane Hosiery Co. v. Shore, 439 U.S.
322, 327 (1979).
Unsurprisingly, the City cites no class action cases to support its argument. The case it does
cite to support a novel expansion of res judicata, Nelson v. Chicago Park District, 408 Ill. App. 3d 53, 62
(1st Dist. 2011), simply does not apply here. That case involved a taxpayer action, not a class action,
(which, in Illinois, does not require certification of a plaintiff class); the later action was unique,
brought by the attorneys who had negotiated a court approved settlement in the former and then
sought to disregard their own negotiated settlement by filing a second action and were sanctioned
for doing so. The courts res judicata finding was specifically premised, inter alia, on a conclusion that
there was sufficient judicial supervision of the settlement and resulting judgment to give the
judgment preclusive effect. 1
The decisions of the trial court and appellate courts in Keating are thus neither binding on
this Court nor preclusive of Plaintiffs claims here. For the reasons below, this Court is free to use its
own best judgment in deciding whether Chicagos Red Light Camera program is unlawful.
II.

Chicagos Ordinance and the Camera Enforcement Program It Created Have Never
Been Legally Authorized
Public Act 94-795, (the Enabling Act) which purported to modify the Illinois Vehicle

Code to allow red light camera ordinances in some municipalities, did not take effect until nearly
three years after Chicago began issuing red light camera tickets. The City asks this Court to
determine the constitutionality of the statute first, but a court should not reach constitutional
questions if, as here, the case can be decided on other grounds. For this reason (and because, as
_______________________________________

Nor is this lawsuit entirely similar to Keating. Some of the claims asserted here, especially pertaining to the
improperly short duration of yellow lights, were not and could not have been part of the Keating action. In
fact, the Citys 2014 Inspector General Report, and media reports that revealed this problem, were not made
until 2014, and so could not have been known, or brought in the earlier case. See Affidavit of Nicholas Clarke,
9, (attached) and Exhibit D to Plaintiffs Second Amended Class Action Complaint (Complaint or
Compl.)
1

described at IIB and IIC below, even a constitutional statute would not salvage Chicagos void
ordinance), Plaintiffs submit that this Court should first decide whether the Complaint states a valid
claim that the Citys Ordinance was legally unauthorized, and so void ab initio, when enacted in 2003.
The City makes three incorrect claims in support of its claim that its Ordinance is valid. It
contends (1) that the Ordinance was valid when enacted in 2003 because the legislature never limited
the authority of home rule units to differentially enforce and administratively adjudicate red light
violations; (2) that, even if the Ordinance was invalid in 2003, the Enabling Act (if constitutional)
automatically revived the Citys void ordinance and explicitly authorized the City to enforce that
ordinance against persons after 2006, without the need for repeal and reenactment of the original,
void ordinance; and (3) that, even if repeal and reenactment were required after 2006 (again,
assuming the Enabling Law is constitutional), minor amendments to Chicagos void ordinance are
the same as the requisite repeal and reenactment. As we now show, none of these propositions is
correct.
A.

Chicago Had No Legal Authority to Enact Its Red Light Camera Ordinance
in 2003
1.

The General Assembly Has Limited Home Rule Powers and Established a Uniform
Statewide System for Enforcing the Rules of the Road

Contrary to the Citys position, home rule units are not permitted to set up parallel systems
of traffic enforcement; few things are expressed more clearly in Illinois law than that traffic
regulations governing the movement of vehicles must be applied and enforced uniformly
throughout the state. Chapter 11 of the Vehicle Code, 625 ILCS 5/100 et seq., is entitled RULES
OF THE ROAD (Rules) and codifies, inter alia, the state law requiring stops at steady red lights.
625 ILCS 5/11-306. Municipalities may adopt the Vehicle Code, in whole or in part, see 625 ILCS
5/20-204, but they may not enact ordinances which conflict with, or set up alternate enforcement
of, these Rules. Chapter 11 contains (as it did in 2003) two uniformity provisions. 207 requires:
4

The provisions of this Chapter shall be applicable and uniform throughout this State
and in all political subdivisions and municipalities therein, and no local authority shall
enact or enforce any ordinance rule or regulation in conflict with the provisions of this Chapter unless
expressly authorized herein.
625 ILCS 5/11-207 (emphasis added). In addition, 208.1 provides:
The provisions of this Chapter of this Act, as amended, and the rules and regulations
promulgated thereunder by any State Officer, Office, Agency, Department or
Commission, shall be applicable and uniformly applied and enforced throughout this State, in
all other political subdivisions and in all units of local government.
625 ILCS 5/11-208.1 (emphasis added). Chapter 11 also contains an explicit limitation on the power
of home rule units:
The provisions of this Chapter of this Act limit the authority of home rule units to
adopt local police regulations inconsistent herewith except pursuant to Sections 11208, 11-209, 11-1005.1, 11-1412.1, and 11-1412.2 of this Chapter of this Act.
625 ILCS 5/11-208.2. 2 The City itself cites to City of Chicago v. Roman, 184 Ill. 2d 504, (City Br. 18)
which noted that [w]hen the General Assembly intends to preempt or exclude home rule units from
exercising power over a matter, that body knows how to do so. and which specifically recognized
208.2, supra, as an example of a proper limit on home rule authority. Id. at 517-18 (emphasis added).
Illinois law in 2003 also expressly limited all home rule units from using local administrative
adjudication to enforce any ordinances regulating vehicular movement:
A system of administrative adjudication means the adjudication of any violation of
a municipal ordinance, except for (i) proceedings not within the statutory or home
rule authority of municipalities; and (ii) any offense under the Illinois Vehicle Code
or a similar offense that is a traffic regulation governing the movement of vehicles
and except for any reportable offense under Section 6-204 of the Illinois Vehicle
Code.

_______________________________________

2 When Chicago adopted its Ordinance in July of 2003, none of the sections enumerated in 208.2 allowed
for anything like red light camera ordinances.
5

65 ILCS 1-2.1.2 (emphasis added). Thus, both the Vehicle Code and the Municipal Code clearly
require that all local bodies enforce the rules of the road, whether found in the state statute or in a
local ordinance, in the uniform statewide manner. 3
2.

Chicagos Ordinance Conflicts with the Provisions of the Vehicle Code and the Municipal
Code

The Citys Ordinance runs afoul of these requirements of uniformity and the limitations on
home rule powers set forth in the Vehicle Code and the Municipal Code. Under the uniform system
of enforcement established by the Vehicle Code, red light violations are enforced by police officers.
625 ILCS 5/16-101. Traffic prosecutions are initiated by the preparation of a Uniform Citation, 725
ILCS 5/11-3, and are adjudicated in the Circuit Courts. Ill. Sup. Ct. Rule 552. Convictions are
reported to the Secretary of State, who can suspend the licenses of repeat offenders. 625 ILCS 5/6204. In Chicago, by contrast, Ordinance violations are enforced by automated cameras, there is no
police involvement, no Uniform Citation is issued, and offenses are adjudicated administratively,
rather than in the Circuit Court. The City also does not report violations under the Ordinance to
the Secretary of State.
The City claims that, except for the Enabling Act, there was no state legislation prohibiting
or limiting the use of red light cameras by home rule units. (City Br. 19) That is incorrect, for two
reasons.

First, as noted above, alternative traffic enforcement schemes like Chicagos were

expressly, if generally, proscribed by the General Assembly in both the Vehicle Code and Municipal
Code sections discussed above. The legislature was not required to think of every possible traffic
ordinance that could upset its uniform system and then prohibit each specifically. Second, when
Chicago enacted its Ordinance in 2003, the state legislature actually had specifically authorized
Illinois municipalities with a population over 1 million (i.e., Chicago) to use cameras in the uniform
_______________________________________

3 The Municipal Code also states that All provisions of this Code relating to the [municipal] control of
streets, alleys, sidewalks and all other public ways are subject to the provisions of The Illinois Vehicle Code
as now and hereafter amended... 65 ILCS 5/11-80-1.
6

enforcement of red light violations, but only in certain, limited conditions, and not in connection
with administrative adjudication. From 1997 until its repeal by the Enabling Act, the state law
governing red light cameras only allowed:
A municipality with a population of 1,000,000 or more may enact an ordinance that
provides for the use of an automated red light enforcement system to enforce
violations of this subsection (c) that result in or involve a motor vehicle accident, leaving the
scene of a motor vehicle accident, or reckless driving that results in bodily injury. This paragraph 5
is subject to prosecutorial discretion that is consistent with applicable law.
625 ILCS 5/11-306(c)(5) (emphasis added)(repealed May 22, 2006). 4 Expressio unis est exclusio alterius
(the expression of one thing is the exclusion of all others) assists courts in ascertaining legislative
intent. Villegas v. Board of Fire & Police Commrs 167 Ill. 2d 108 (1995). Here, the narrow, and express,
grant of authority for very limited municipal use of an automated red light enforcement system,
when read together with the pervasive uniformity requirements of Chapter 11, only confirms that
the General Assembly intended in 2003 to exclude home rule authority for any broader use of red
light cameras. If the legislature believed, as the City evidently does, that home rule municipalities
already had the authority to employ camera enforcement of red-light violations, it would have had
little reason to pass the Enabling Act in 2006, or limit that laws applicability to only eight counties.
Clearly, legislators who didnt want to have this option in their counties, and who voted down the
original (general) red-light camera bills (Compl. 117-20) must have believed that, absent new
legislation, there was no such authority.
The City also claims, curiously, that its alternative regulatory system is different (City Br.
21) and so should not be restricted by statutes requiring uniformity in traffic enforcement. But if the
Ordinance truly targeted irresponsible ownership of vehicles, as the City contends (City Br. 21),
then what possible rationale would justify a police-issued citation tak[ing] precedence (City Br. 20)
over its enforcement? Any violations of the Ordinance are triggered by the exact same conduct (a
_______________________________________
4
See Affidavit of Patrick Keating (Keating Aff.) 10 and Ex. 7 thereto. (Attached)
7

vehicle entering an intersection against a red light) that is already uniformly regulated by both the
state Rules and by Chicagos own (uniform) red-light ordinance, see Chicago Municipal Code Ch. 98, 020(c)(1)-(2); 9-16-030(c).
The City would have this Court conclude that its Ordinance was not, when enacted, a
traffic regulation governing the movement of vehicles, (City Br. 22), but it does not disclose the
published Opinion in Catom Trucking Inc. v. City of Chicago, 2011 Ill App (1st) 101146, which
forecloses this argument. Catom, as here, involved a challenge to an ordinance in Chapter 9 of
Chicagos municipal code.

Like the red light Ordinance, that ordinance: (1) prohibited on a

municipal level conduct already prohibited in Chapter 11 of the Vehicle Code (the operation of
overweight trucks); (2) contained a method of violation detection different than the uniform system
(use of non-police city employees to pull over and weigh trucks); and (3) was enforced at the
municipal level, routing payments through the Citys Department of Revenue, and adjudications
through its Department of Administrative Hearings. Id. at 13-14. For purposes of analysis under
the Illinois Municipal Code, Chicagos 2003 Red Light Ordinance and the ordinance at issue in
Catom Trucking are indistinguishable.
Chicago made two arguments in Catom Trucking of particular relevance here. First, it claimed
that it was not administratively adjudicating provisions of the Vehicle Code, but rather that it was
adjudicating its own ordinance, which, it contended, differed from the analogous provisions in the
Vehicle Code. Id. 11. But the Court held that, even though the municipal ordinances in question
were not identical to the Vehicle Code, they were similar, Id. at 14, and that similarity was
sufficient to bring them within the Section 1-2.1-2 proscription. Second, the City also argued that its
Ordinance did not regulate the movement of vehicles, but the appellate court found the City
lacked jurisdiction to administratively enforce truck weight restrictions that were traffic regulations
governing the movement of vehicles. Id. at 18.
8

3.

Numerous Authorities Uniformly Conclude that Alternative Enforcement Schemes Like

the Ordinance are Impermissible

When Chicago adopted its Red Light Camera Program in 2003, ample precedent should
have alerted the City that it had no legal authority to enact such an Ordinance. A formal Opinion of
the Attorney General in 1992 determined that municipal home rule ordinances establishing
"alternative" civil enforcement of traffic violations outside of the Vehicle Code were
void and . . . conflict with the comprehensive traffic regulation and enforcement
policy set forth in the Illinois Vehicle Code and the Supreme Court Rules on bail in
traffic cases, and deny due process of law.
Op. Atty. Gen. No. 92-013, 1-2 (June 22, 1992) 5. Such opinions are entitled to considerable weight
in Illinois. See Mulligan v. Joliet Regional Port Dist., 123 Ill. 2d 303, 317-18 (1988).
Like Catom, the case law prior to 2003 reached the same conclusion as the Attorney General.
In 1999, the Secretary of State challenged the authority of several municipalities, including home rule
units, to issue their own non-uniform violation notices and assess civil fines for violating traffic laws.
In People ex rel. Ryan v. Vill. of Hanover Park, 311 Ill. App. 3d 515 (1st Dist. 1999), the Court held that
this alternative enforcement of various traffic laws, was precluded and, indeed, was exactly what the
legislature sought to prevent in the uniformity provisions of Chapter 11. Hanover Park concluded
that the Vehicle Code is devoid of any authorization for the programs that administratively
adjudicate violations of Chapter 11 and found that to be valid, the alternative traffic programs
must comport with the provisions mandating uniformity and consistency. . . . Id. 527. The court
found that the ordinances improperly provided for an enforcement scheme different from the one
contemplated by the Vehicle Code and its attendant provisions. The specific deviations were similar
to those at issue here, and so the court held:
the enforcement of the ordinances cannot be said to be uniform with enforcement
of chapter 11 in areas of the state without these programsMoreover, it follows that
the lack of uniformity makes these ordinances inconsistent with the policy of
uniformity expressed in chapter 11 of the Code.
_______________________________________

5 Available at www.illinoisattorneygeneral.gov/opinions/1992/index.html (City Br. Ex. 10)

9

Id. This was not a close call; the appellate court found that the conflict between the municipal
ordinances and the Vehicle Code was patent. Id. Hanover Park holds that non-uniform enforcement
of traffic laws is itself an inconsistency prohibited by the Vehicle Code.
B.

Because the Ordinance was Void Ab Initio, it was not Revived by the
Enabling Act, even if that Act was Constitutional

Even assuming it is constitutional (but see infra Point III), the Enabling Act that was passed in
2006 does not prescribe or directly authorize red-light programs anywhere in Illinois. The statute
authorizes only eight specified counties, and the municipalities within those counties, to adopt such
ordinances if they choose. But Chicago did not use this later-granted putative authority to enact
such an ordinance; it simply continued to enforce its existing (but void) ordinance. Because the City
never repealed its 2003 Ordinance, and did not enact a new ordinance pursuant to the authority
(purportedly) granted by the Enabling Act, its red-light camera program remained invalid -- even if
the Enabling Act had properly granted Chicago the authority to prospectively enact a similar
ordinance. This is not an elevation of form over substance, it involves core principles of the rule of
law.
The Enabling Act did not take effect for nearly three years after Chicago enacted its
Ordinance. The plain language of the Enabling Act reveals no intent to operate retroactively ([t]his
Act takes effect upon becoming law) or to validate any preexisting ordinances. The Statute on
Statutes accordingly directs that the Enabling Act operate in futuro only. 5 ILCS 70/4; Caveny v. Bower,
207 Ill. 2d 82, 92 (2003).
An ordinance adopted beyond a municipalitys power is void and, in legal contemplation, as
inoperative as though it had never been passed. Dean Milk Co. v. City of Aurora, 404 Ill. 331, 338
(1949); Two Hundred Nine Lake Shore Drive Bldg. Corp. v. City of Chicago, 3 Ill. App. 3d 46, 51 (1971)
(ordinance that is void as unauthorized has no legal existence whatsoever). The void ab initio
doctrine is premised on the notion that an act void when enacted
10

is not a law; it confers no rights; it imposes no duties; it affords no protection; it

creates no office; it is, in legal contemplation, as inoperative as though it had never
been passed.
People v. Blair, 2013 IL 114122, 28 (2013) (quoting Norton v. Shelby County, 118 U.S. 425, 442 (1886));
see also People v. Burney, 2011 Ill. App. 4th 100343, 42 (2011) (court fines or fees imposed without
proper statutory authority are void ab initio).
It is, moreover, well settled that a municipal ordinance, invalid because the municipality
lacked power to adopt it, is not validated only by the subsequent enactment of an enabling statute.
People ex rel. Larson v. Thompson, 377 Ill. 104, 109 (1941). Even a true curative act, passed with the
express intention of retroactively remedying a defective exercise of power, could not revive the
Citys Ordinance, Johnson v. Edgar, 176 Ill. 2d 499, 522-23 (1997); People ex rel. Shore v. Helmer, 410 Ill.
420 (1951), because the General Assembly cannot by curative act render a void proceeding valid[] .
. . [or] operate to supply a power which was lacking in the first instance; it matters not whether the
lack of authority is statutory or constitutional in nature because subsequent enabling legislation
[cannot] . . . bring vitality to [the] otherwise barren attempt of the municipality to regulate the social
evil. Two Hundred Nine Lake Shore, 3 Ill. App. 3d at 51 (quoting, in part, People ex rel. Rhodes v. Miller,
392 Ill. 445, 449-50 (1946). 6 The 2006 Enabling Act simply could not give validity to the exercise
of a power where such assumed power did not exist at the time it was purported to have been
exercised. In re Cnty. Collector of Kane Cnty., 172 Ill. App. 3d 897, 905 (2d Dist. 1988). Chicago simply
lacked authority to adopt the Ordinance in 2003 and no enabling act could by itself confer
posthumously the power. Larson, 377 Ill. at 114. This Enabling Act only gave Chicago the power in
2006 to adopt an ordinance. The City could have easily done so, but evidently chose not to
highlight its programs original infirmity, and it must face the consequences of that calculation.
_______________________________________

6 In reality, Chicagos lack of authority to legislate alternative traffic enforcement schemes has both a
statutory and a constitutional dimension, as authority for statutes that restrict or limit the concurrent exercise
of home rule powers is itself found in the Constitution, Article VII, Section 6.
11

The City claims that the 2006 Enabling Act Automatically Revived its 2003 Ordinance,
(City Br. 16) but it does not cite to any specific authority, and never deals with the allegation that its
Ordinance was void upon enactment in 2003. Instead it raises a defense to a claim plaintiffs never
made: that its Ordinance was not void, merely preempted, relying on Lily Lake Road Defenders v.
County of McHenry, 156 Ill. 2d 1 (1993), City of Burbank v. Czaja, 331 Ill App. 3d 369 (1st Dist 2002)
and Yonikus v. Indus. Commn, 228 Ill App. 3d 333 (5th Dist 1992). However, those cases involved
ordinances that were valid when enacted, not dead on arrival like the Citys. They stand for an
entirely different proposition: that no express reenactment is required when a valid ordinance is later
preempted, and then the preemption is removed. Chicago grudgingly concedes that the law in Lily
Lake was on the books before the preempting legislation (City Br 16) and the Supreme Courts
decision applied only to a preexisting ordinance that was valid when enacted 156 Ill. 2d at 15.
See City of Burbank 331 Ill. App 3d at 378 (preemption is not a declaration that the preexisting
ordinance is repealed. It is a declaration that it cannot be enforced.)
In contrast, Vill. of River Forest v. Midwest Bank & Trust Co., 12 Ill. App. 3d 136, 140 (1st Dist.
1973), mirrors the chronology here. In 1959, River Forest adopted an ordinance prohibiting
unrelated persons from occupying a single-family home. It lacked legal authority to enact such a
zoning ordinance in 1959, but gained that power when the General Assembly passed an enabling act
in 1967. River Forest, however, never re-enacted the 1959 ordinance after 1967, nor did it adopt a
new ordinance, so its original ordinance was void. Id. The court held that legislative validations are
limited by the rule that validity cannot be given to assumed municipal power which did not exist
when it was exercised. Id. at 140.

As in River Forest, the 2006 Enabling Act did not validate

Chicagos void 2003 Ordinance, either retrospectively or prospectively. Chicago likewise failed to reenact or re-adopt its Ordinance following passage of the Enabling Act so its Ordinance was void
and invalid before May 22, 2006, and remains so today.
12

C.

Nothing the City or the Legislature has done since 2003 has Revived
Chicagos Ordinance

Chicago argues in the alternative that several minor amendments to the ordinance over the
years constitute re-enactment of the Ordinance. (City Br. 17) It relies on Yonikus v. Industrial
Commission, 228 Ill. App. 3d 333 (5th Dist. 1992), but misperceives the effect of the rule stated there.
Both the Statute on Statutes, 5 ILCS 70/2, and Yonikus (and its brethren) establish that amendments
to existing ordinances do not reenact or create a new ordinance, and the legal effect of the original
ordinance here a void one - is unchanged: Where an amendatory ordinance is enacted which
reenacts some of the provisions of the former ordinance, such portions of the old ordinance as are
repeated or retained, either literally or substantially, are to be regarded as a continuation of the old
ordinance and not as the enactment of a new ordinance on the subject or as a repeal of the former ordinance.
Village of Park Forest v. Wojciechowski, 29 Ill. 2d 435, 438 (emphasis added) (1963); Dean Milk Co. v.
City of Aurora, 404 Ill. 331, 337-38 (1949) (As the ordinance amended is void and, in legal
contemplation, as inoperative as though it had never been passed, the later ordinance purporting to
amend it is likewise void and of no effect.); City of Kewanee v. Celander, 324 Ill. 476,479 (1927) (An
amendment to a previous ordinance which is void and of no effect cannot make the ordinance
valid.) See also, U.S. Bank Nat. Ass'n v. Clark 216 Ill.2d 334, (2005) (amendment would not be
construed as substituting for express reenactment). It may be that the City Councils intent (City
Br. 16-17) was to continue to operate a red light camera program, but amending an ordinance that is
a nullity is akin to transplanting new organs into a cadaver: it gives no life.
The City indisputably knows how to repeal and reenact chapters of its Municipal Code, but
taken together, every new word of the three minor amendments made after the Enabling Act, and
before the filing of this case (in 2007, 2009, and 2011), 7 would not constitute a coherent paragraph,
_______________________________________

7 The 2012 Amendments to the Ordinance were more comprehensive, but not substantive: several sections
of the Vehicle Code were amended and recodified to accommodate a newly enacted speed camera ordinance
which Chicago did not enact until after a state enabling law was passed.
13

much less a valid ordinance. See County of DuPage v. Molitor, 26 Ill. App. 2d 232 (2nd Dist. 1960)
(distinguishing an amendment from a complete revision of the entire ordinance that might be
considered to repeal the former ordinance and substitute a new one.)
III.

The Enabling Act that Purports to Authorize Red-Light Cameras in Certain Counties
Is Unconstitutional
Public Act 94-795 (the Enabling Act), which ostensibly empowered some Illinois

municipalities, of all sizes and types, but no others, to adopt red light camera ordinances, is a classic
example of a facially unconstitutional local law. 8 As a result, it too was void from enactment and can
provide no retroactive justification for the Citys Ordinance. Illinois courts must strike down
legislation that violates the constitution. People v. Olender, 222 Ill. 2d 123, 131 (2005), and have a duty
to declare invalid an unconstitutional statute, no matter how desirable or beneficial the attempted
legislation may be. People v. P.H., 145 Ill. 2d 209, 221 (1991).
A.

The Enabling Act is a Local Law that Could Have Been Made General and
Thus Barred by Article IV of the Illinois Constitution

Article IV, Section 13 (Section 13) of the Illinois Constitution (1970), in full 9, states:
The General Assembly shall pass no special or local law when a general law is or can
be made applicable. Whether a general law is or can be made applicable shall be a
matter for judicial determination.
Although the terms are often conflated, special and local are distinct terms:
The word local signifies belonging to or confined to a particular place. When
applied to legislation, it signifies such legislation as relates to only a portion of the
territory of a state. The word local is used as a counter term to general . The
words local and special as used by the framers of our Constitution, were
designed to remedy different evils.
People v. Wilcox, 237 Ill. 421, 424 (1908) A local law is one which applies only to the government of
a portion of the territory of the state. Best v. Taylor Mach. Works, 179 Ill. 2d 367, 392 (1997) (quoting
_______________________________________

8 Plaintiffs timely served a Supreme Court Rule 19 Notice on the Attorney General, who has declined to
intervene to defend the constitutionality of the Enabling Act. See Keating Aff, 3 Exh 1))
9 The Citys recitation of the clause omitted its second sentence. (City Br. p. 9)
14

George R. Braden & Rubin G. Cohn, Ill. Constitutional Study Commn, The Ill. Constitution: An
Annotated & Comparative Analysis 20607 (Univ. of Ill. Inst. of Govt and Pub. Affairs (1969)) 10 Due
to the last-minute addition to the bill of the following sentence, the Enabling Act is indisputably,
and unabashedly, local:
This Section applies only to the Counties of Cook, DuPage, Kane, Lake, Madison,
McHenry, St. Clair, and Will and to municipalities located within those counties.
625 ILCS 5/11-208.6(m). (Compl. 117).
What is a special law may present a difficult question for the courts, which will analyze the
rationality of the classification(s) made by the challenged law between legislative objects (City Br.
pp. 9-12), but deciding what is a local law is easy. This Enabling Act does not contain any
classification to be analyzed, because Acts relating to local political subdivisions by name are a
form of identification and not classification. 2 Sutherland Statutory Construction 40.8 (7th Ed.) Even
under the 1870 Constitution, a law that simply listed the political subdivision(s) where it applied was
an obvious violation of the prohibition on local laws:
Normally, in the law as elsewhere, the obvious violation of a rule not only creates no
problems, it rarely occurs. This is true of local and special legislation. An obvious
example of local legislation would be a statute proposing to permit the city of
Onetown to have five dog-catchers, notwithstanding a general law that limited all
cities to four dog-catchers.
Braden & Cohn. at 207.
Shortly after the 1970 Constitution took effect, the Supreme Court confirmed that applying
the Article 13 test is just as straightforward as it seems: the constitutional test under Section 13 of
Article IV is whether a general law could have been made applicable. People ex rel. East Side Levee
_______________________________________

10 This treatise, hereafter Braden & Cohn, was commissioned by the Illinois Constitutional Study
Commission as part of the preparations for the 1970 Constitutional Convention. It contains detailed analysis
of, inter alia, judicial decisions under the various provisions of the 1870 Constitution, coupled with
recommendations for the delegates to the forthcoming 1970 Constitutional Convention. Braden & Cohn
proposed the language for Article 13 and may be considered the Drafter of that section of the 1970
Constitution. (Attached to Keating Aff., Exh 2)
15

and Sanitary Dist. v. Madison County Levee and Sanitary Dist., 54 Ill. 2d 442, 447 (1973) (emphasis added)
With its local restriction added, the Enabling Act is not general: it treats similarly situated
municipalities very differently and treats some very different municipalities the same 11. Even as the
City cites cases urging a completely deferential standard of review, the Supreme Courts most recent
guidance on Section 13 reaffirms that
the deference previously accorded the legislative judgment whether a general law
could be made applicable has been largely eliminated by the addition in Section 13 of
the provision that this shall be a matter for judicial determination.
Board of Educ. of Peoria School Dist. No. 150 v. Peoria Federation of Support Staff, 2013 IL 114853 50
(quoting East Side Levee, 54 Ill. 2d at 447).
The Enabling Act is, without serious question, a local law that could have been made
general: The structure, the policy considerations, and the legislative history of PA 94-795
demonstrate that it could easily have been made general. First, a single sentence, now codified at
208.6(m), made the Enabling Act local. The acts sponsor, a senator from Chicago, conceded
we took some counties out at their request ( Compl. 118)-- if they hadnt, the law that resulted
would be general (had it passed).

Second, the public policy problem that red light cameras

ostensibly seek to remedythe running of red lightsis not one that requires a facially local law.
Traffic lights are found everywhere in this State, and red light violations are too (as are, for that
matter, cash-strapped municipalities that would benefit from camera revenue). The City has not to
date articulated any reason why what it considers to be the safety (and what are the undoubted
financial) benefits of red light camera ordinances should not be available to every county and every
municipality in the state. It would be hard-pressed to do so, because PA 94-795 is only an enabling
act: it imposes no costs or responsibilities on any county or municipality that simply chooses not to
enact a compliant red light camera ordinance. Plaintiffs know of no other state laws authorizing
_______________________________________

Of the 13 municipalities in Illinois with populations over 75,000, seven are permitted to use red light
cameras and six are not. (Keating Aff. 9, Exh. 6)
11

16

additional criminal or quasi-criminal ordinances, or regulating individual conduct, only in certain,

named parts of the state.
Finally, the Enabling Act and its predecessor (HB 21) were originally drafted as bills of
general application. The legislative history actually establishes that the Enabling Act is local because
a general law was not politically achievable: state senators told the bills sponsor that they did not want red
light cameras in their counties, he removed those counties from its scope, and only then the bill
narrowly pass. (Compl. 114-15, 117-20). On a 2-615 Motion, the City must concede the wellsupported inference that the Enabling Act was made local primarily, if not solely, to secure the votes
for its passage. The improper purpose for this local law is properly considered here: Where some
rationale is offered, however, we are not required to ignore it. Cutinello, 161 Ill. 2d at 428 (Freeman,
J., dissenting); see also Unzicker v. Kraft Food Ingredients Corp., 203 Ill. 2d 64, 86-87 (2002) (looking to
legislative history in special legislation challenge of statute when [t]he reason for the classification
is not apparent from the face of the statute.); Allen v. Woodfield Chevrolet, Inc., 208 Ill. 2d 12, 25-26
(2003) (same). If the Enabling Act is constitutional, it is hard to picture a local law that Section 13
would ever bar.
B.

The Enabling Act Does Not Pass Survive Even Under the Rational Basis
Test Proposed by Chicago

Chicago urges that the Enabling Act must be analyzed under the same old deferential
rational basis test that would apply to any legislative act, as if the ban on local legislation did not
exist. But, as discussed above, this Court owes the legislature no deference on the only question the
Constitution directs to it --whether the Enabling Act could be made general. Even if Chicagos
proposed test were applied, moreover, the Enabling Act would still fail because there is no rational
relationship between the characteristics of a municipality that would warrant use of red-light cameras
and the county in which the municipality happens to be located.

17

The Enabling Act uses its listing by name of eight counties and nothing more to divide
Illinois 1,312 municipalities into two groups: those permitted to employ red light cameras, and those
which are not. It has two sets of legislative objects particular counties and particular
municipalitiesbut it distinguishes those objects only at the county level. The Supreme Court has
twice considered laws which distinguish municipalities only by the county in which they are located,
and twice has stricken down such statutes under Section 13. See In re Pet. of the Village of Vernon Hills,
168 Ill. 2d 117, 127 (1995); In re Belmont Fire Prot. Dist., 111 Ill. 2d 373 (1986).
Belmont struck down a statute that gave to any municipality in a county defined by a
population range (but to no other municipalities) the authority to eliminate fire protection districts
that covered more than one municipality. The Court invalidated the law under Section 13 because:
We can perceive of no rational reason why a municipality served by multiple fire
protection districts in a county with a population between 600,000 and 1 million can be
said to differ from a municipality which is served by multiple fire protection districts in
a county with less than 600,000 or more than 1 million inhabitants. If a real need
exists to eliminate the alleged disadvantages and dangers of multiple fire protection
districts serving one municipality, then the same need to remedy this evil also exists in other
counties as well, regardless of the level of the population of the county.
111 Ill. 2d at 382 (1986) (emphasis added). If red light running (or even irresponsible ownership
of vehicles) is an evil to be reduced by cameras, that evil also exists in other municipalities. The
inability to pass a general law does not then permit the legislature to make a local or special law, and a
court cannot rule that the legislature is free to enact special legislation simply because reform may
take one step at a time. Best, 179 Ill. 2d at 398 (citing Grace, 51 Ill.2d at 487) As here, the statute at
issue in In re Belmont was an enabling act that imposed no burden on any municipality but, rather,
provided a tool that certain favored municipalities could implement to address a perceived
problem. When municipalities are the object of the law (as in the Enabling Act) valid legislative
classifications must also be made at that level:

18

[I]t would rationally follow that the statute in question should be based on either the
population, urbanization, or density of the municipality involved, not the population of
the county in which the municipality lies.
Belmont at 385 (emphasis added). The Enabling Act defines not a single factor that could justify why
red light cameras are allowable in one community, but not another. As drafted, no municipality
outside of the eight counties, no matter how populous, congested, or lawless it is, or becomes, can
ever grow its way into the favored group.
More recently the court struck down a similar, two-tiered law in In re Pet. of Vill. of Vernon
Hills, 168 Ill. 2d 117 (1995), which gave only the municipalities in certain, population-defined
counties, special powers regarding fire protection districts. Once again, this Court clarified that
there is no relationship whatsoever between county population and the need for municipalities to
consolidate fire protection districts. 168 Ill. 2d at 129 (emphasis added).
The Plaintiffs Complaint establishes that many of the largest and most traffic dense cities
(and at least one such county, Winnebago) are not permitted to have red light cameras, while many
small rural communities are.

Assuming that the rationality of the Enabling Acts listing of some

political subdivisions is at issue at this case, the burden of establishing that is on plaintiffs, and so
should not be decided on the Citys 2-615 motion. See, Vernon Hills (decided following an evidentiary
hearing), Cutinello (decided on a full summary judgment record), and In re Belmont (evidentiary
hearing); cf Vill of Schaumburg v. Doyle (277 Ill. App. 3d 832) (deciding that a population-based classification on pesticide regulation had a rational basis on a motion to dismiss)
Cutinello upheld a facially local law that created a new county fuel tax, but only in three
named counties. Chicago suggests that courts regularly uphold true local laws (City Br 9-12), but,
in fact, Cutinello stands alone. Unlike the statute at issue here, Cutinello involved only a one-tier
classification, where the statute operated at the county / infrastructure level and classified its objects
by naming the relevant counties. Vernon Hills, later holding a two-tier classification like the Enabling
Acts unconstitutional, expressly distinguished Cutinello:
19

Cutinello, Nevitt, and Bilyk are therefore unlike the present case. Here, as in Belmont,
there is no relationship whatsoever between county population and the need for
municipalities to consolidate fire protection districts. There also is no basis on which to
distinguish Lake County from any other county for purposes of section 14.14.
In re Pet. of Vill. of Vernon Hills, 168 Ill. 2d at 129 (emphasis in original). Further, the dissent in
Cutinello succinctly summed up the problem with the statute there (as here): The act merely names,
without any qualifying characteristics, the three counties included within its scope. 161 Ill. 2d at
427-48 (Freeman, J., dissenting).
Because of the significant differences between Cutinello and this case, which involves a novel,
two-tiered statute containing no true classification, what Chicago is really asking this Court to do is
to extend Cutinello well beyond the limits of that case and apply it to an entirely different type of
classification scheme, without the rationale or the facts to support such a broadened application.
But Cutinello, even limited to its own particular facts, is already at the far reaches of what might be
considered constitutional under the Section 13 provision and this Court has already declined to
extend it. Indeed, Cutinellos effects already threaten to proliferate. The bill drafting manual for the
Illinois General Assembly now touts that opinion as it advises drafters that they may now,
effectively, disregard the ban on local legislation, and eschew the hard work of valid legislative
classification entirely:
An Illinois Supreme Court opinion, however, suggests that it might be better just to
name McHenry County and forget about trying to define its population, particularly
when population may not be a rational and fair basis for making the distinction.
Cutinello v. Whitley, 161 Ill.2d 409 (1994).
Illinois Bill Drafting Manual, Sec 20-15 (Legislative Reference Bureau, December 2012).

If the

Enabling Act can survive in light of the constitutional ban on local legislation, then Section 13 is
truly a dead letter, and the legislature will be free to start simply limiting otherwise unpopular and
unpassable laws to certain named political subdivisions in order to secure their passage.

20

C.

The Intent of the Drafters of the 1970 Constitution Was to Ban Local
Legislation, Especially Where It Was Made Local Only to Secure the Votes for
Passage

The rules of constitutional interpretation require the Court to determine the intent of the
drafters and, in the case of a constitution, those who ratified it. People v. Fitzpatrick, 2013 IL 113449
23. Although a detailed discussion of the intent of the drafters of the 1970 Constitution is beyond
the scope of this response, a brief summary confirms that the drafters intent was to ban facially
local legislation that could have been made general, especially where (as here) it is clear that the
geographic restrictions were introduced simply to obtain the votes for the laws passage. The
problem of special and local legislation had bedeviled state legislatures throughout the 19th century.
Robert M. Ireland, The Problem of Local, Private, and Special Legislation in the Nineteenth-Century United
States, 46 Am. J. Legal Hist. 271, 271 (2004) (hereinafter Ireland) and Illinois 1870 Constitution
did limit it. But the 1870 constitution did not provide for judicial review of such laws, and lacked
several other features (home rule power for municipalities, discrete equal protection guarantees, etc.)
necessary to fully bar such laws. Braden & Cohn, who proposed the exact language adopted for
Section 13, also feared that the courts would, rather than applying the clear test they proposed,
import the deferential rational basis test developed largely under the 1870 constitution, noting that
although the language they proposed, including judicial review, was a solution to the problem of
local legislation, there is of course no assurance that the courts would not gallop through such a
hole, dragging the old pseudo-special legislation rules with them. Braden & Cohn, p.226.
The drafters recognized that when local laws are permitted, proponents of such bills can
convince fellow legislators (whose districts will not be affected by the law) to vote for their bills as
matter of legislative courtesy, knowing that when the time comes, they will in return find support
for their own local and special bills, no matter how bad or unpopular. Ireland at 27374, Braden &
Cohn at 207 (legislators are normally interested in their own private bills, and passage is relatively
easy) Because the intent of the drafters aligns with the simple test they set forth in Section 13, this
21

Court should conclude that the Enabling Act is a local law that could have been made general, and
so violates the Illinois Constitution.
IV.

Chicago is Legally Responsible for its Illegally Short Yellow Lights

The City concedes that it issued tens, if not hundreds, of thousands of tickets for red light

camera violations where the yellow light duration was less than the 3.0 seconds, even as it publicly
touts on its web site that its yellow lights are set to three seconds and that such timings fall within
the guidelines of the Manual on [sic] Uniform Traffic Control Devices, and adheres [sic] to
recommendations by the Institute of Transportation Engineers. 12 (Compl. 163).
The City now claims that there is no legally enforceable minimum yellow change interval.
But, as discussed below, the three second minimum is a legal standard, not a suggestion, and the
only circumstance where engineering judgment might suggest a duration shorter than three seconds
would be on a very steep uphill grade where gravity would assist vehicle braking-- something this
Court may take judicial notice is a rare occurrence indeed in Chicago. On a 2-615 motion the City
must accept as fact that its yellow durations are too short.
The MUTCDs three second minimum applies to Chicago. Federal law requires that each
state have an approved highway safety program, see 23 U.S.C. 402(a), and directs the federal
Secretary of Transportation to approve all traffic signals, 23 U.S.C. 109(d). Pursuant to this
authority, the Secretary has declared that the current version of the MUTCD is the national
standard to be applied on any street or highway open to public travel, see 23 CFR 655.603(a). In
turn, the Illinois Vehicle Code requires the Illinois Department of Transportation (IDOT) to
adopt a state manual and specifications for a uniform system of traffic control devicesfor use
upon highways in this State, that is required to conform to the most recent edition of the MUTCD.
625 ILCS 5/11-301. In addition, the Secretary of IDOT has certified the MUTCD as Illinois
_______________________________________

12 The Citys default speed limit, and so the most common limit on city streets, is 30 miles per hour.
22

official manual (See Compl. Exh B ). The City suggests this may be defective because it was not
published in the Illinois Administrative Code, but that is unnecessary. See Intergovernmental Insur.
Exch. v. Judge 221 Ill. 2d 195, 201 (Manual was formerly codified but is now published.).
Moreover, the Vehicle Code also directs local authorities to place and maintain . . . traffic
control devices in their jurisdiction and requires that [a]ll such traffic control devices shall
conform to the State Manual and specifications 625 ILCS 5/11-304. Compliance with the MUTCD
specifications imposes a duty and is not optional: Section 11-304 provides that, when placing
traffic control devices, local authorities shall i.e. must, follow the Illinois Manual. Governmental
InterInsurance Exch., 221 Ill. 2d at 217.

Illinois law (not cited by the City) further establishes that

motorists are required to obey only the instructions of any official traffic control device. 625 ILCS
5/11-305. Traffic signals that do not comply with the MUTCD are not official for purposes of the
Illinois Vehicle Code. Young v. Gateway Transp. Co. Inc., 26 Ill.App.3d 864, 870 (1975); see, City of
Chicago v. Myers, 100 Ill.App.2d 87 (1968) (Signs prohibiting left turns did not comply with the State
manual, so trial court finding that motorist made an improper left turn was in error).
Chicago makes much of the fact that the three to six second standard in MUTCD 4D.26
03 is denoted as Guidance, but omits that 4D.26 05 requires that the duration shall [i.e. must] be
determined by engineering practices and that 4D.26 07 expressly directs the user to the ITEs
Traffic Control Devices Handbook and the Manual of Traffic Signal Design. (Attached to
Keating Aff. Exh. 3-5) The Traffic Control Device handbook actually requires more than three
seconds on level streets: it directs the yellow duration calculation to be made by adding 7 mph to the
posted speed limit, which would require a minimum yellow light duration, for a street posted at 30
mph, at over 3.6 seconds. Even assuming that the 30 mph speed limit is the actual approach
speed, the Manual of Traffic Signal Design identifies a Theoretical Minimum Clearance Interval of

3.2 seconds for a yellow change.

23

The facts necessary to establish the improperly short duration of Chicagos traffic lights are
clearly pleaded and should not, in any event, be decided on a 2-615 motion. See, Snyder v. Curran.,
167 Ill.2d 466 (1995) (compliance with the MUTCD requirements was a question for jury). Even
Graber v. City of Ankeny, 656 N.W. 2d 157, cited by the City, found a genuine issue of material fact
about whether a municipality properly applied engineering judgment under the MUTCD. Id. at 167
If this Court can decide anything as a matter of law, it is that most if not all of Chicagos traffic
signals do not conform to legal standards, the plaintiffs have adequately pleaded that, and that fining
motorists for failing to comply with nonconforming traffic signals is not permitted (Young) and is
clearly inequitable. These claims should proceed.
V.

Nicholas Clarkes Claims Should Not be Dismissed

The Citys proffered limitations defense ignores the rule that the pendency of a proposed

class action suspends the applicable statute of limitations as to all asserted members of the class
who would have been parties had the suit continued as a class action. Steinberg v. Chicago Medical
School, 69 Ill.2d 320, 342 (1977) (citing American Pipe & Construction Co. v. Utah, 414 U.S. 538, 554
(1974). 13 Here, the statute of limitations for Clarkes claim was suspended during the pendency of
two putative red light camera class actions filed in the Circuit Court of Cook County: Parveen Idris, et
al. v. City of Chicago, No. 06 CH 6085 (filed Sept. 29, 2006, mandate issued Jan 27, 2009) and Keating
(filed July 2, 2010, mandate issued December 30, 2014) (See Keating Aff. 11-13 and Exh. 8-10
thereto). It is thus clear that, due to these suspensions of the limitations period totaling nearly seven
years, even a five-year statute had not run when this action was filed on April 18, 2012 - or even

_______________________________________

13 There is no inconsistency in finding that Clarke was not a party for purposes of res judicata but
nonetheless may take advantage of American Pipe tolling. See Devlin v. Scardelletti, 536 U.S. 1, 10 (2002)
(unnamed class members may be parties for purposes of American Pipe tolling without being parties for all
purposes).
24

when Clarke joined the lawsuit (assuming without conceding that his claims did not relate back) in
December 2014. 14
In this case, however, the statute of limitations did not even accrue at the time Nicholas
Clarke was ticketed in January 2005. The discovery rule delays the commencement of the relevant
statute of limitations until the plaintiff knows or reasonably should know that he has been injured
and that his injury has been wrongfully caused. Jackson Jordan Inc. v. Leydig, Voit & Mayer, 158 Ill.2d
240 (1994); its application is generally a question of fact. Id.

Here, Mr. Clarkes affidavit

establishes what this Court can already appreciate that the fact that Chicagos ordinance was not
legally authorized was not and could not have been known to a lay person at any time until the
myriad problems with the Citys program received reasonably widespread publicity in 2014. This is
not a case where, even if Clarke had consulted a lawyer about a $90 ticket, it would be rational to
expect the level of investigation and analysis necessary to determine the basis of Clarkes claim,
especially given the nature of the defects in the Citys authority and in the Enabling Act itself.
Even if an unsuspended five-year statue did apply, this is just the case where equitable tolling
would be appropriate. Equitable tolling allows a court to excuse plaintiffs who could not file timely
because of an irremediable lack of information, or other circumstances beyond his control, the
plaintiff cannot reasonably be expected to file suit on time. Hart v. Loan Kieu Le, 2013 Ill. App (2d)
121380, 5. The facts pleaded by plaintiffs establish efforts, almost a conspiracy, by the City to hide
from the public that its program was legally unauthorized, and Clarkes claims should be allowed to
go forward at this stage. The City can claim no surprise or prejudice, its program has been

_______________________________________

14 The City removed the Idris case to federal court on November 8, 2006, and the federal courts, after
deciding federal due process claims, dismissed (instead of remanding) the state law claims. The suspension of
the limitations period is not affected because the case was in the federal system, for two reasons: First,
because the case was filed in the state courts the forum shopping concerns that led to a limitation on cross
jurisdictional tolling in Portwood v. Ford Motor Co., 183 Ill.2d 459 (1998) do not apply, and second, because 28
USC 1367(d) expressly tolls the state law limitations period for pendent state claims pending in federal court.
25

challenged almost continuously since 2006. The suitability of any plaintiff as a class or sub-class
representative is better determined on class certification.
VI.

Chicagos Voluntary Payment Defense Is Premature and Contradicted by the WellPleaded Facts
As its last line of defense, the City conjures an argument based on the hoary voluntary

payment doctrine. But the only question before this Court is the adequacy of the pleading, and
every plaintiff here either challenged his/her ticket by administrative hearing before paying, or
protested payment, or both (Compl. 177, 198, 210, 219, 231, Clarke Aff). Payment under protest
is recognized as the standard means by which citizens signify objections to government charges and
taxes (Getto v. City of Chicago, 86 Ill. 2d 39, 45 (1981)).

Further, the pleading alleges that each

payment was induced by the awesome array of tools available to the city to coerce payment, from
the doubling of fines to collection actions to the revocation of drivers licenses to the booting of
cars to the withholding of state income tax refunds. (Compl. 88-100).
Under Illinois law, payment is involuntary if either (1) the taxpayer lacked knowledge of the
facts upon which to protest the taxes at the time he or she paid the taxes, or (2) the taxpayer paid the
taxes under duress. Geary v. Dominick's Finer Foods, Inc., 129 Ill. 2d 389, 393 (1989). As the Supreme
Court has repeatedly noted in the context of the voluntary payment doctrine, [t]he ancient doctrine
of duress of person, and later of goods, has been relaxed, and extended so as to admit of
compulsion of business and circumstances. Geary, 129 Ill. 2d at 396 (quoting Getto, 86 Ill. 2d at 52).
Plaintiffs need not plead an actual threat which induced payment, or even an actual awareness that
failure to pay would result in a particular deprivation. Ramirez, 371 Ill. App. 3d 797, 802. Implied
duress, certainly present here, is sufficient to defeat a voluntary payment defense. King v. First
Capital Fin. Servs. Corp., 215 Ill. 2d 1, 31 (2005).
The defense is weaker still when the City raises it because [i]f the duress is exerted by one
clothed with official authority or who is exercising a public employment, less evidence of
26

compulsion or pressure is required People ex rel. Carpentier v. Arthur Morgan Trucking Co., 16 Ill. 2d
313, 319 (1959) see also Ball v. Village of Streamwood, 281 Ill. App. 3d 679 (1st Dist. 1996) (payment of
transfer tax to a municipality involuntary where ordinances provided penalties and fines for failure
to pay). Here, Plaintiffs were at risk of doubled fines, fees to release their cars from immobilization,
garnishment of state tax refunds, and ultimately, loss of their driving and/or registration privileges
(or, in the case of the unpaid boot fees, their cars) if they did not pay. Because unpaid Tickets are
viewed as a debt due and owing the city they are subject to all enforcement measures contained at
Section 2-14-103 of the Chicago Code, including collection actions, litigation, and recovery of
attorneys fees (Compl. 88-100). Even more so than in Carpentier, the payment demands here
came clothed with substantial official authority, and resulting payments were made under duress, and
so were not voluntary.
Chicago ignores the recent Supreme Court decisions, like King and Geary, which have steadily
expanded the duress exception to the rule, especially where non-payment could deprive plaintiffs of
access to things (like cars and drivers licenses) that may be deemed necessities. See Getto, 86 Ill. 2d
at 356 (observation in dissent that Illinois has effectively abandon[ed] the voluntary payment
doctrine) The recent Restatement also adopts the view that the Citys defense here makes little
sense and should be abandoned:
The formulaic refusal to allow restitution in respect of illegal taxes 15 and fees rests on
the ancient fiction according to which mistake of law is not relievable mistake. By
this formula, everyone is presumed to know the law; therefore a person who pays an
illegal tax does so with knowledge of the illegality and voluntarily, within the meaning
of the voluntary payment rule, unless payment was made under duress. Reasoning of
this sort is merely window-dressing for a refusal to grant relief. If voluntary payment
is given a realistic meaning, it has no possible application to the common case in
which a taxpayer seeks to recover taxes that were determined to be illegal only after
they were paid.

_______________________________________

15 The Restatement uses taxes broadly as shorthand for every form of imposition or assessment collected
under color of public authority. 19(1)
27

Restatement (Third) of the Law of Restitution and Unjust Enrichment 19 comment h (2011). In Harrison
Sheet Steel Co. v. Lyons, 15 Ill. 2d 532, 536 (1959) the court questioned
whether the rigid distinctions that have sometimes been drawn between the right to
recover money paid under mistake of fact and the right to recover money paid under
mistake of law ever had historical justification as common law doctrines.
Here, the voluntary payment defense is at best premature, because plaintiff alleges payment
under duress and the question whether duress was actually present is generally one of fact. Arra v.
First State Bank & Trust Co. of Franklin Park, 250 Ill. App. 3d 403, 409 (1st Dist. 1993); see also Ramirez
v. Smart Corp., 371 Ill. App. 3d 797, 805 (3d Dist. 2007) (why the payments were made is generally
an issue of material fact not properly decided as a matter of law.) The Courts recognize that
defendants like the City who assert voluntary payment at the pleadings stage throw unnecessary
technical obstacles in plaintiffs path Geary, 129 Ill. 2d at 408.

To the extent the defense is not

premature, this Court should find, based on the allegations of the Complaint, that Plaintiffs
payments were coerced and thus not voluntary.
The City also suggests plaintiffs claims are defective because they were required to exhaust
judicial procedures for review, but Illinois law makes no such requirement, and in fact litigants
who challenge the legal authority of a government action, or the facial constitutionality of a statute,
need not exhaust administrative remedies, Morr-Fitz v. Blagojevich, 231 Ill. 2d 474, 498 (2008); see also
Arvia v. Madigan, 209 Ill. 2d 520, 532 (2004), and need never pursue administrative remedies that are
inadequate or futile Morr-Fitz, 231 Ill. 2d at 499. Plaintiffs have pleaded, and the City concedes on
this 2-619 motion, that its administrative hearings are, effectively, a sham; the City is held to no real
burden of proof in a civil hearing, (Compl. 73). Should a plaintiff wish to challenge a predictably
adverse ruling to the circuit court or beyond, the filing fees for such actions will exceed the amount

28

at issue, (Compl. 81) so providing, for purposes of federal due process, what the 7th Circuit has
already blasted as an illusory remedy. Van Harken v. City of Chicago, 103 F. 3d 1346, 1353-54 16.
The City claims that this availability of any review, no matter how illusory or futile, ipso facto
renders all payments to it voluntary. Chicago justifies retaining the proceeds here - even if collected
under an illegal scheme - on a 1968 case, Berg v. City of Chicago, 97 Ill. App. 2d 410 (1st Dist. 1968),
which purports to expand the voluntary payment doctrine to preclude recovery where at the time
of payment ... the accused has an option to pay the fine or appeal. 97 Ill. App 2d at 422. But Berg
never cited Illinois law for that proposition, relying instead on an ancient passage from a general
treatise. No published decision ever followed Berg on voluntary payment, while at least one court has
roundly rejected it:
The Berg proposition on voluntarism is unwarranted. It is highly fictitious to say that
one charged with violating a speeding ordinance should later be precluded from
recovering fine money paid under the void ordinance simply because he voluntarily
paid it. The reasoning merely assumes the conclusion.
Johnston v. City of Bloomington, 61 Ill. App. 3d 209 (4th Dist. 1978), overruled on other grounds 77 Ill.2d 108
(1979). Whatever the continuing vitality of Berg on its own facts, it has no applicability here; the
pleading in that case alleged no facts regarding duress or involuntariness of payment.
CONCLUSION
For the foregoing reasons, Plaintiffs request that the Citys combined Motion to Dismiss be
denied.

_______________________________________

The City argues that plaintiffs Sullivan and Gernaga are precluded from participating here because each
challenged one of their tickets up to the municipal department. But both received multiple tickets from the
City and the tickets challenged (City Br. 5 & Exh 7) are not the same ones at issue here (Compl. 193, 229)
16

29

Respectfully Submitted,
April 17, 2015
_________________________________
SIMMONS HANLY CONROY LLC
Derek Y. Brandt
Andrea Bierstein (not admitted in IL)
One Court Street
Alton, Illinois 62002
(618) 259-2222
and
ROBERTS MCGIVNEY ZAGOTTA LLC
Patrick J. Keating
55 W. Monroe Street, Suite 1700
Chicago, Illinois 60603
(312) 251-2273
Attorneys for Plaintiffs and the Putative Class

30

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, CHANCERY DIVISION
TERIE L. KATA, MAUREEN SULLIVAN , NICHOLAS
CLARKE, BOHDAN GERNAGA and NIRAJ RAMI,
individually and on behalf of all others similarly
situated,
Plaintiffs,
v.
CITY OF CHICAGO, an Illinois Municipal
Corporation,
Defendant.

TO:

)
)
)
)
)
) Case No. 12 CH 14186
)
) In Chancery ( Class Action)
)
) Calendar 9
)
)
)
)

NOTICE OF FILING
Mardell Nereim
Rebecca Hirsch
Grant Ulrich
Office of the Corporation Counsel,
City of Chicago
30 N. LaSalle Street
Chicago, IL 60606
PLEASE BE ADVISED that on Friday, April 17, 2015 we caused to be filed PLAINTIFFS

BRIEF IN RESPONSE TO MOTION TO DISMISS, a copy of which is attached herewith.

TERIE L. KATA, MAUREEN SULLIVAN ,
NICHOLAS CLARKE, BOHDAN GERNAGA
and NIRAJ RAMI, individually and on behalf of
all others similarly situated
By:

One of Its Attorneys

Roberts McGivney Zagotta LLC

55 W. Monroe Street
Suite 1700
Chicago, IL 60603

{00046399}

CERTIFICATE OF SERVICE
The undersigned, a non-attorney, certifies that she caused a copy of Plaintiffs Brief In Response
to Motion to Dismiss to be served upon the above named party, via hand delivery and via US Mail, postage
prepaid, to the above counsel by depositing same in the U.S. Mail located at 55 W. Monroe Street, Chicago,
Illinois before 5:00 p.m. on April 17, 2014.
___________________________________
Patricia Earley
Patrick J. Keating
Roberts McGivney Zagotta LLC
55 W. Monroe Street
Suite 1700
Chicago, IL 60603
312-251-2287

{00046399}