Response Brief on Chicago's Motion to Dismiss the Red Light Camera Class Action 17 April 2015

7/21/2019 Response Brief on Chicago's Motion to Dismiss the Red Light Camera Class Action 17 April 2015

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INTHECIRCUITCOURTOFCOOKCOUNTY,ILLINOIS

COUNTYDEPARTMENT,CHANCERYDIVISION

TERIE L.KATA,MAUREEN SULLIVAN ,NICHOLASCLARKE, BOHDAN GERNAGAand NIRAJ RAMI,

individually and on behalf of all others similarlysituated,

Plaintiffs,

v.

CITY OF CHICAGO, an Illinois Municipal

Corporation,

Defendant.

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Case No. 12 CH 14186

In Chancery ( Class Action)

Calendar 9

PLAINTIFFS BRIEF IN RESPONSE TO MOTION TO DISMISS

{00046399}


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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Complaint (Compl. 109) The City never repealed its void law, suspended its program, or enacted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 & 103rdCurrency 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 CourtsAbility 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

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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 judicataargument 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 thanthe original named plaintiffs, that is a risk that the defendant assumes by filing a motionto 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 argumentthat 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, 41-

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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 judicatafinding 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

1Nor is this lawsuit entirely similar to Keating. Some of the claims asserted here, especially pertaining to theimproperly short duration of yellow lights, were not and could not have been part of the Keatingaction. Infact, the Citys 2014 Inspector General Report, and media reports that revealed this problem, were not madeuntil 2014, and so could not have been known, or brought in the earlier case. SeeAffidavit of Nicholas Clarke,

9, (attached) and Exhibit D to Plaintiffs Second Amended Class Action Complaint (Complaint orCompl.)

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The provisions of this Chapter shall be applicable and uniform throughout this Stateand in all political subdivisions and municipalities therein, and no local authority shallenact or enforce any ordinance rule or regulation in conflict with the provisions of this Chapter unlessexpressly 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 regulationspromulgated thereunder by any State Officer, Office, Agency, Department orCommission, shall be applicable and uniformly applied and enforced throughout this State, inall 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 toadopt local police regulations inconsistent herewith except pursuant to Sections 11-

208, 11-209, 11-1005.1, 11-1412.1, and 11-1412.2 of this Chapter of this Act.

625 ILCS 5/11-208.2.2The 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 powerover a matter, that body knows how to do so. and which specifically recognized

208.2, supra, as an example of aproperlimit 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 anyordinances regulating vehicular movement:

A system of administrative adjudication means the adjudication of any violation ofa municipal ordinance, except for (i) proceedings not within the statutory or homerule authority of municipalities; and (ii) any offense under the Illinois Vehicle Codeor a similar offense that is a traffic regulation governing the movement of vehiclesand except for any reportable offense under Section 6-204 of the Illinois VehicleCode.

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

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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 MunicipalCode

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 5/6-

204. 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 ofstreets, alleys, sidewalks and all other public ways are subject to the provisions of The Illinois Vehicle Codeas now and hereafter amended... 65 ILCS 5/11-80-1.

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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 thatprovides for the use of an automated red light enforcement system to enforceviolations of this subsection (c) that result in or involve a motor vehicle accident, leaving thescene of a motor vehicle accident, or reckless driving that results in bodilyinjury. This paragraph 5is subject toprosecutorial discretionthat is consistent with applicable law.

625 ILCS 5/11-306(c)(5) (emphasis added)(repealed May 22, 2006).4Expressio 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 excludehome 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

4See Affidavit of Patrick Keating (Keating Aff.) 10 and Ex. 7 thereto. (Attached)

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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, seeChicago Municipal Code Ch. 9-

8, 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. at13-14. For purposes of analysis under

the Illinois Municipal Code, Chicagos 2003 Red Light Ordinance and the ordinance at issue in

Catom Truckingare indistinguishable.

Chicago made two arguments in Catom Truckingof 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. at18.

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3.

Numerous Authorities Uniformly Conclude that Alternative Enforcement Schemes Likethe 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 enforcementpolicy set forth in the Illinois Vehicle Code and the Supreme Court Rules on bail intraffic 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. SeeMulligan 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 enforcementof chapter 11 in areas of the state without these programsMoreover, it follows thatthe lack of uniformity makes these ordinances inconsistent with the policy ofuniformity expressed in chapter 11 of the Code.

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

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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 Parkholds 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 theEnabling 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 adoptsuch

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 operatein futuroonly. 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

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is not a law; it confers no rights; it imposes no duties; it affords no protection; itcreates no office; it is, in legal contemplation, as inoperative as though it had neverbeen passed.

People v. Blair, 2013 IL 114122, 28 (2013) (quotingNorton 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 astatutory and a constitutional dimension, as authority for statutes that restrict or limit the concurrent exerciseof home rule powers is itself found in the Constitution, Article VII, Section 6.

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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 (1stDist 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 validordinance is later

preempted, and then the preemption is removed. Chicago grudgingly concedes that the law in Lily

Lakewas 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 re-

enact 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.

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C.

Nothing the City or the Legislature has done since 2003 has RevivedChicagos 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), 7would not constitute a coherent paragraph,

7 The 2012 Amendments to the Ordinance were more comprehensive, but not substantive: several sectionsof 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.

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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 CountiesIs 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 andThus Barred by Article IV of the Illinois Constitution

Article IV, Section 13 (Section 13) of the Illinois Constitution (1970), in full9, 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 amatter 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. Whenapplied to legislation, it signifies such legislation as relates to only a portion of theterritory of a state. The word local is used as a counter term to general . Thewords local and special as used by the framers of our Constitution, weredesigned 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 tointervene 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)

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George R. Braden & Rubin G. Cohn, Ill. Constitutional Study Commn, The Ill. Constitution: An

Annotated & Comparative Analysis20607 (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 noproblems, 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 ofOnetown to have five dog-catchers, notwithstanding a general law that limited allcities 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 StudyCommission as part of the preparations for the 1970 Constitutional Convention. It contains detailed analysisof, inter alia, judicial decisions under the various provisions of the 1870 Constitution, coupled withrecommendations for the delegates to the forthcoming 1970 Constitutional Convention. Braden & Cohnproposed the language for Article 13 and may be considered the Drafter of that section of the 1970Constitution. (Attached to Keating Aff., Exh 2)

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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 same11. 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 lawcould be made applicable has been largely eliminated by the addition in Section 13 ofthe 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

(quotingEast 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 notbe 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

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

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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 well-

supported 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 BasisTest 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.

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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. SeeIn 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 fireprotection districts in a county with a population between 600,000 and 1 million can besaid to differ from a municipality which is served by multiple fire protection districts ina county with less than 600,000 or more than 1 million inhabitants. If a real needexists to eliminate the alleged disadvantages and dangers of multiple fire protectiondistricts serving one municipality, then the same need to remedy this evil also exists in othercounties 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 topassa general law does not then permit the legislature to makea 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 Belmontwas 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:

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[I]t would rationally follow that the statute in question should be based on either thepopulation, urbanization, or density of the municipality involved, not the population ofthe countyinwhich 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); cfVill of Schaumburg v. Doyle(277 Ill. App. 3d 832) (deciding that a population-based class-

ification 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. VernonHills, later holding a two-tier classification like the Enabling

Acts unconstitutional, expressly distinguished Cutinello:

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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 formunicipalitiesto consolidate fire protection districts. There also is no basis on which todistinguish 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 Cutinelloand 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 toname McHenry County and forget about trying to define its population, particularlywhen 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.

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C.

The Intent of the Drafters of the 1970 Constitution Was to Ban LocalLegislation, Especially Where It Was Made Local Only to Secure the Votes forPassage

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 19 thcentury.

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 ruleswith 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

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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.

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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. Judge221 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 2seconds for a yellow change.

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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 notconform 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) (SeeKeating 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 butnonetheless 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 allpurposes).

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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, afterdeciding federal due process claims, dismissed (instead of remanding) the state law claims. The suspension ofthe 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 crossjurisdictional tolling in Portwood v. Ford Motor Co., 183 Ill.2d 459 (1998) do not apply, and second, because 28USC 1367(d) expressly tolls the state law limitations period for pendent state claims pending in federal court.

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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 Well-

Pleaded 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

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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 Kingand 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. SeeGetto, 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 taxes15and fees rests onthe ancient fiction according to which mistake of law is not relievable mistake. Bythis formula, everyone is presumed to know the law; therefore a person who pays anillegal tax does so with knowledge of the illegality and voluntarily, within the meaningof the voluntary payment rule, unless payment was made under duress. Reasoning ofthis sort is merely window-dressing for a refusal to grant relief. If voluntary paymentis 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 afterthey were paid.

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

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Restatement (Third) of the Law of Restitution and Unjust Enrichment 19 comment h (2011). InHarrison

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 torecover 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 alsoRamirez

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 futileMorr-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

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at issue, (Compl. 81) so providing, for purposes of federal due process, what the 7thCircuit has

already blasted as an illusory remedy. Van Harken v. City of Chicago, 103 F. 3d 1346, 1353-5416.

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 Bergon voluntary payment, while at least one court has

roundly rejected it:

The Bergproposition on voluntarism is unwarranted. It is highly fictitious to say thatone charged with violating a speeding ordinance should later be precluded fromrecovering fine money paid under the void ordinance simply because he voluntarilypaid 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.

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

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Respectfully Submitted,

April 17, 2015

_________________________________

SIMMONS HANLY CONROY LLCDerek Y. Brandt

Andrea Bierstein (not admitted in IL)

One Court Street

Alton, Illinois 62002

(618) 259-2222

and

ROBERTS MCGIVNEY ZAGOTTA LLC

Patrick J. Keating55 W. Monroe Street, Suite 1700

Chicago, Illinois 60603

(312) 251-2273

Attorneys for Plaintiffs and the Putative Class

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INTHECIRCUITCOURTOFCOOKCOUNTY,ILLINOIS

COUNTYDEPARTMENT,CHANCERYDIVISION

TERIE L.KATA,MAUREEN SULLIVAN,NICHOLASCLARKE, BOHDAN GERNAGAand NIRAJ RAMI,

individually and on behalf of all others similarlysituated,

Plaintiffs,

v.

CITY OF CHICAGO, an Illinois Municipal

Corporation,

Defendant.

)

)

)

)

)

)

)

)

)

)

)

))

)

Case No. 12 CH 14186

In Chancery ( Class Action)

Calendar 9

NOTICE OF FILINGTO:

Mardell NereimRebecca HirschGrant UlrichOffice of the Corporation Counsel,City of Chicago30 N. LaSalle Street

Chicago, IL 60606

PLEASE BE ADVISED that on Friday, April 17, 2015 we caused to be filed PLAINTIFFS

BRIEFINRESPONSETOMOTIONTODISMISS, a copy of which is attached herewith.

TERIE L. KATA, MAUREEN SULLIVAN ,NICHOLAS CLARKE, BOHDAN GERNAGAand NIRAJ RAMI, individually and on behalf ofall others similarly situated

By:One of Its Attorneys

Roberts McGivney Zagotta LLC55 W. Monroe StreetSuite 1700Chicago, IL 60603

{00046399}


33/33

CERTIFICATE OF SERVICE

The undersigned, a non-attorney, certifies that she caused a copy of Plaintiffs Brief In Responseto Motion to Dismiss to be served upon the above named party, via hand delivery and via US Mail, postageprepaid, 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

Documents

Response Brief on Chicago's Motion to Dismiss the Red Light Camera Class Action 17 April 2015