A state appeals panel has agreed a Cook County judge was right to end a class action lawsuit accusing the city of Markham of issuing illegal red light camera tickets.
Karen Murphy and Mark Kmiecik sued Markham on behalf of all drivers who got red light tickets from June through November 2017, alleging the tickets were invalid because a link on the city’s website was inoperable, preventing peopled from accessing notices and reports required by Illinois traffic laws.
Both parties moved for summary judgment, which Cook County Circuit Court Judge Caroline Moreland granted to Markham. Summary judgment is a ruling that effectively ends a lawsuit before trial.
The drivers challenged that ruling before the Illinois First District Appellate Court. Justice LeRoy Martin wrote the panel’s decision; Justices Bertina Lampkin and Debra Walker concurred. The order was issued under Supreme Court Rule 23, which may restrict its use as precedent.
According to court records, Markham enacted its red light camera program in 2007 under a state law pilot project allowing such enforcement in eight counties. It complied with Illinois Vehicle Code requirements to post public information about which intersections had cameras along with “the statistical analysis results of each intersection,” Martin wrote.
Murphy got her red light ticket in April 2016 and paid $100.
Kmiecik said he got a ticket dated June 5, 2017.
That prompted a visit to the city website to see where other cameras were located. After three unsuccessful attempts, Kmiecik said he paid the fine by a check and marked the payment stub “pay under protest.” He further alleged he or his lawyer visited the site eight more times through October before a successful visit Nov. 15, 2017.
Although Judge Moreland agreed municipalities were bound to fully comply with the Vehicle Code provisions regarding camera locations, instead of only substantial compliance, she also determined a temporary website outage didn’t negate that obligation and noted the complaint didn’t show how the broken link caused legal prejudice. Moreland further found the statistical analysis requirement fell under a “directory” provision, which requires only substantial compliance.
Martin said neither of the applicable Vehicle Code clauses include “negative language prohibiting further action or specific consequences for noncompliance,” and specifically do not contain statutory language stipulating “government action is rendered a nullity by a website’s failure to comply with these subsections.”
Although Kmiecik alleged prejudice based on an inability to use the website to determine camera locations, the panel said he didn’t claim or demonstrate “the website’s outage affected his ability to obey normal traffic regulations, such as stopping at red lights.”
The panel said reading the law as including a mandatory construction “would provide drivers who run red lights with a technical basis for avoiding an automated red-light ticket. We doubt our legislature intended such a possibility. Consequently, we find that the right of the public to assess the locations of intersections equipped with red-light cameras would not be injured” by a holding the construction was only directory.
Regarding the posting of camera data, Martin continued: “Kmiecik fails to provide evidence of any injury or prejudice suffered by him or any class member resulting from the inability to access online statistical analysis,” thus meaning he failed to overcome the presumption favoring a directory reading of that clause.
That conclusion also undercut the claim of unjust enrichment, the panel said. It did not consider Markham’s arguments about claim preclusion or failures to exhaust administrative remedies.
Attorneys from the firm of Krislov Law, of Chicago, represented the drivers.
In response to questions from the Cook County Record, attorney Ken Goldstein said: “We have reviewed the decision, and expect to file a petition for leave to appeal" to the Illinois Supreme Court.
The city did not respond to a request for comment.