Class action vs Chicago over distracted driving tickets OK to continue; City: Not really a moving violation

By Jonathan Bilyk | Feb 12, 2019

A Cook County judge, for now, has allowed a class action lawsuit to proceed against the city of Chicago, brought by a group of people who claimed the city wrongly prosecuted tens of thousands of distracted driving tickets.

However, lawyers for the city have asked the judge to reconsider that decision, arguing the tickets, while issued to people operating a mobile device while driving, should not be considered a so-called moving violation, under state law.

The lawsuit first pulled into Cook County court in 2017, when lawyers from the firm of Myron M. Cherry & Associates, of Chicago, filed suit on behalf of three named plaintiffs.

Only weeks earlier, the Cherry firm attorneys had already hauled in a settlement worth $39 million, including $11 million in fees, on behalf of a group of thousands of people who they argued had been wrongly made to pay fines under the city’s red-light camera enforcement program.

In the subsequent lawsuit, the Cherry lawyers argued the city for years had improperly prosecuted people ticketed by Chicago Police for texting or otherwise using a mobile phone or other device while driving, violating a city ordinance forbidding such use. The lawsuit did not directly challenge the tickets themselves or question whether the ordinance was unconstitutional.

Rather, the lawsuit bore down on a claim the city violated state law by funneling the citations through the city’s administrative hearings system, depriving those accused of their rights to mount a defense to the charges in Cook County Circuit Court and steering the full amount of all fines collected into city coffers.

Typically, should a ticket be tried in court, the city must split any fines collected with other offices associated with the courts, keeping only 45 percent of the total paid. However, if the violation is tried through the city’s Department of Administrative Hearings, the city could pocket the full amount.

The lawsuit contends state law doesn’t allow the city to do that, because the violation should be considered a moving violation, and should be reported to the Illinois Secretary of State’s Office to be counted against a motorist’s driving record.

Further, the lawsuit asserts the language of the city’s ordinance effectively mirrors that of a state law forbidding similar behavior.

However, the lawsuit contends the city opted not to send the matter to the courts, nor report convictions to the Secretary of State.

The lawsuit also accuses the city of using its administrative hearing process to pressure those ticketed under the distracted driving ordinance to quickly pay $100 fines, rather than risk going to a hearing and ultimately paying $500.

Late last year, Cook County Circuit Judge Pamela McLean Meyerson rejected City Hall’s bid to dismiss the lawsuit, saying her plain reading of the city ordinance led her to conclude violations of the ordinance should be considered moving violations under state law.

She noted “the Ordinance ‘itself says it’s not a violation unless you are moving in a vehicle,’” according to a brief filed by the city’s lawyers.

In the judge’s opinion, this meant the plaintiffs should be allowed to continue to press their case asserting the city sent traffic violations to its administrative hearing process which, under state law, rightly belonged in Cook County Circuit Court.

However, in that brief, filed Jan. 31, the city lawyers asked the judge to reconsider her decision, contending the judge misunderstood the law. They specifically said she misapprehended the phrase “traffic regulation governing the movement of vehicles” in state law. The city lawyers said the judge mistakenly assigned a “plain” meaning to that phrase, when the phrase should be considered a “legal term of art,” which has a particular meaning only under particular circumstances.

In this case, the city’s lawyers said the term should not be applied to the city ordinance, just as the term is not applied to other offenses, such as running a red light, which state law allows to be tried through administrative hearings, rather than in court.

“The Court’s Order rests on an incorrect assumption that the operative phrase, ‘traffic regulation governing the movement of vehicles,’ is a simple description of *any* regulation directed to conduct that occurs while driving or when a motor vehicle is in motion,” the city argued on Jan. 24. “A review relevant Illinois Vehicle Code provisions, however, shows that the phrase is actually a legal term of art the (Illinois) General Assembly uses to categorize offenses.

“Specifically, the General Assembly often uses the phrase to except offenses from being considered moving violations even though the conduct proscribed involves the offender driving a motor vehicle.”

The city also asserted the judge wrongly sided with plaintiffs on the question of whether the city had improperly not reported distracted driving violations to the Secretary of State.

The city pointed to differences in the law’s reporting requirements. And further noted the state to this point has not treated a first violation of its distracted driving law as a moving violation subject to points under the Secretary of State’s conviction reporting system.

The city noted that will change on July 1, 2019, when any violation of the state’s distracted driving law will clearly be treated by the Secretary of State as a moving violation, moving a driver potentially closer to suspension or revocation of their driver’s license.

Nearly seven months earlier, plaintiffs had responded to this assertion in a brief filed in response to the city’s motion to dismiss. In that document, filed in June 2018, the plaintiffs noted, without adequate reporting as required by law, there would be no way for the Secretary of State’s Office to know who had recorded more than one violation.

The judge also took that view in December when she ruled the plaintiffs could continue their lawsuit.

The judge has not yet ruled on the city’s request for reconsideration.

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Circuit Court of Cook County City of Chicago Illinois Secretary of State Myron M. Cherry & Associates

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