On Feb. 19, Cook County Circuit Judge Kathleen G. Kennedy ruled plaintiffs Themasha Simpson, Delyn McKenzie-Lopez and Erica Lieschke could continue with a large portion of their potential class action lawsuit against the city.
Introduced last year, the lawsuit claimed the city’s practices in enforcing tickets issued under its red light camera and speed camera programs violated the Illinois Constitution, state vehicular law and the city’s own ordinance. The lawsuit also alleged the city’s tickets issued under the program should be voided and the city made to pay damages for collecting fees and fines it should not have collected.
Specifically, the lawsuit argued the city did not properly list the make of the vehicle photographed during the alleged red light and speeding violations; the city overstepped its home rule powers, which should have been limited by the Illinois Vehicle Code; and the city failed to send a second notice of violation, as required by its ordinances, to give those receiving the tickets sufficient chance to contest them in court, before the city began assessing additional fees and fines for the unpaid tickets.
The city asked the judge to toss out the lawsuit entirely, arguing, among other contentions, that the plaintiffs who did not contest their tickets had not yet earned the chance to sue, as the city had administrative review procedures in place; that the city’s ordinances don’t mandate the city send second notices or specify the vehicle’s make on the ticket forms; and that the plaintiffs can’t claim the city didn’t have a right to fine them or assess fees, because they stood accused of breaking the law, and had not yet used the legal system to clear their names.
Kennedy sided with the city on the claims regarding the city’s policies in listing the vehicle’s make. She noted Illinois Vehicle Code requires automated red light and speeding tickets specify the vehicle’s make only “if the make is available and readily discernible.” And the state law doesn’t lay out any penalties to a city or other agency that doesn’t specify the vehicle’s make on the tickets.
In this case, the judge said, the city opted to list the vehicle make as “OTHR.” But the state law, she said, renders the vehicle make specification requirements only “directory” rather than “mandatory,” and means the plaintiffs can’t sue under that provision.
She dismissed all counts related to those claims, including claims under the Illinois Constitution, with prejudice.
The judge, however, said there is a much greater likelihood the city erred in neglecting to send more than one violation notice. She said the language in the city’s ordinance stating the city “shall” send a second notice means the “shall” in this case is mandatory. So, failing to send a second violation notice, could result in the red light and speeding camera tickets being voided, she said.
And that, in turn, means the city may have had no right to collect fines or fees for those violations, or the failure to pay the original fine within the allowed time.
“The ordinance makes it clear that the city was required to send a second notice before determining liability,” the judge wrote. “The city argues that notices received by plaintiffs satisfied due process because ‘due process only requires notice and an opportunity to be heard’ … Here, plaintiffs’ receipt of a single violation notice does not mean that due process was satisfied when the ordinance mandates that two notices be sent to a non-responder before a determination of liability.”
Further, the judge said the plaintiffs, while acknowledging they were accused of breaking the law, have the right to press their claims, regardless of the charges against them, because they are not acting in bad faith or to defraud the city.
A status hearing has been scheduled for the case on March 25.
The judge has not yet ruled on whether the lawsuit can be expanded to include a class of potentially thousands of others to whom the city has issued red light or speeding camera tickets.
The plaintiffs are represented in the action by attorneys from the firm of Myron M. Cherry & Associates, of Chicago. The city is defended by lawyers from its Department of Law.