$38M red light camera settlement on table; Deal won't end risk to city, taxpayers, other litigants say

By Jonathan Bilyk | Jul 21, 2017

Potentially hundreds of thousands of people who received tickets from Chicago’s red light cameras could be in line for a bit of a refund, should Chicago aldermen sign off on a $38.75 million settlement deal negotiated by City Hall’s lawyers to end a class action lawsuit over alleged abuses in the automated traffic enforcement program.

But the trial lawyers behind a separate class action against the city over its red light camera program say the settlement doesn’t end the legal and financial risk to the city or taxpayers, and  have publicly asked City Hall to similarly negotiate with them to end their litigation, as well.

Next week, officials from the city’s Department of Law are scheduled to present a proposed settlement to the City Council’s Finance Committee. From there, the proposal would go to the City Council.

City officials say the proposed settlement is intended to forestall the potential for a court to order the city to pay perhaps $250 million or more in damages, should the case head to trial in coming months.

The proposed settlement offer has not yet been submitted to the Cook County Circuit Court judge overseeing proceedings in the lawsuit.

“The Law Department has diligently defended against this litigation, but given certain rulings from the courts and the risk of a judgment against the city in excess of $250 million, we believe this resolution is in the best interests of the taxpayers,” Ed Siskel, the city’s corporation counsel, said in a prepared statement issued Thursday. “While the city continues to believe it has strong legal defenses to these claims, we are recommending the City Council approve the proposed settlement to protect taxpayers from significant financial exposure.”

The lawsuit at the heart of the settlement landed in Cook County court in 2015, when attorneys Myron Cherry and Jacie Zolna, of the Chicago firm of Myron Cherry & Associates, filed suit on behalf of three plaintiffs who alleged they and a class of potentially thousands of others had received improperly issued red light camera tickets.

Specifically, Zolna and Cherry 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.

In February 2016, Circuit Judge Kathleen Kennedy sided with the plaintiffs on at least one key question, saying the city likely did violate its ordinance in sending just one violation notice, when the ordinance specified a second notice “shall” be sent. That means the city may have violated the plaintiffs’ rights to due process, and the tickets could be voided.

“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,” Kennedy wrote.

Kennedy, who has since retired, then certified four classes of potential plaintiffs, including those who received red light or speed camera tickets before May 17, 2015; those who paid fines or penalties, to the city as a result of receiving those tickets before May 17, 2015; and anyone who paid late fees under the programs between July 1, 2012, and May 9, 2015.

Settlement talks then followed that ruling.

According to Zolna, the settlement is “unprecedented.”

He said deal would allow people who received a red light camera ticket since 2015 to receive a refund of “up to half of what they paid.”

Further, he said the city will change its notice policies and other procedures to address the issues raised in the lawsuit, and City Hall won’t count any of the 1.5 million red light camera tickets issued toward booting ticket recipients’ cars or revoking their drivers licenses.

Should the City Council and Cook County Judge Pamela McLean Meyerson – who is now presiding over the case – accept the settlement deal, Zolna said class members will be notified by mail as to how they can claim their refunds.

In other published reports, Zolna said his law firm expects to receive a little less than one-third of the total settlement amount in attorney fees.

However, while city lawyers say they hope to use the settlement to avoid any further financial damage, the attorneys representing a different group of class action plaintiffs suing the city over the legality of the red light camera enforcement program say the city shouldn’t forget about them.

In the wake of the announcement of the Cherry law firm’s settlement, attorney Patrick Keating asked the city’s corporation counsel to “point out to the finance committee that the proposed settlement of the (Cherry) red light camera case, substantial as it is, does not resolve all legal challenges to the city’s ill-conceived program.”

Keating addressed Siskel in a letter, dated July 21, which he also released publicly the same day.

Last spring, Keating, representing a group of plaintiffs, asked Cook County Judge Rita M. Novak to reconsider her previous dismissal of their lawsuit, which alleged the red light camera program was unconstitutional and illegal, because the state law authorizing the program was also unconstitutional and illegal.

The law in question allowed municipal governments in counties located solely in the Chicago and St. Louis metropolitan areas to establish such automated red light programs.  Keating argued such a law is forbidden by the Illinois constitution’s prohibition on “local laws,” which would apply for no rational reason only to select communities or regions of the state.

The plaintiffs in this lawsuit also argued the city had improperly enacted its ordinance prior to the passage of the 2006 state law authorizing the program.

The lawsuit, Keating said, expanded on claims leveled in an earlier lawsuit, which had been narrowly rejected by the Illinois Supreme Court, after the court could not muster the four votes required to find against the city.

Specifically, the high court justices had decided 3-2 against the city in that case, docketed as Keating v. City of Chicago. But that decision occurred only because Justices Anne M. Burke and Lloyd Karmeier recused themselves. Burke’s husband, Chicago Alderman Ed Burke, chairs the Chicago Finance Committee, and, as Democratic Ward Committeeman, he also helps the Democratic Party slate judges for election in Cook County.

Karmeier has not said why he recused himself in the case.

“…One more vote, or one less abstention vote, would likely have resulted in a now $600+ million liability to the city,” Keating wrote in his July 21 letter.

Keating also noted the renewed case remains pending, and “we remain that the city has yet to engage in good faith negotiations, despite having been order to attend a pretrial conference by Judge Novak last year.”

“If the city has an interest in addressing all of its liabilities for its red light camera program at this time, we are happy to talk,” Keating wrote.

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City of Chicago Illinois Supreme Court Myron M. Cherry and Associates, LLC Roberts McGivney Zagotta LLC

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