IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOISCOUNTY D~PARTM~NT, CHANCERY DIVISION

T~RIE L. KATA, et al.,

v.

CITY OF CHIC~IGO,

Plaintiffs,

Defendan#.

Case No. 12 CH 14186

Hon. Rita NovakCalendar 9

CITY OF CHICAGO'S I2EPL1' IN SUPPORT OF ITSCOMBINED SECTION 2-619.1 MOTION TO DISMISS

THE SECOND AMENDED CLASS ACTION COMPLAINT

MARDLLL NEREIMR~BFCCA ALFERT HIRSCHGR1~NT LJLLRICHCity of Chicago; Department of La~~Constitutional and CommercialLitigation Division

30 North LaSalle Street, Suite 1230Chicago, Illinois 60602(312) 742-0260 / 744-7864

Attorl~ey No. 90909

TABU OF CONTENTS

TABU OI' CONTENTS ................................................................................................................ i

TABU OF AUTHORITI~S .......................................................................................................... ii

INTRODUCTION...........................................................................................................................1

ARGUM~NT ...................................................................................................................................1

I. PLAINTITFS' CLAIMS ARE BARRED BY RCS JUDICATA .........................................1

II. PLAINTII'F CLARKE' S CLAIMS ARC TIME-BARRI3D ...............................................5

III. THE STATUTE DOES NOT VIOLATE THE ILLINOIS CONSTITUTION ...................9

IV. THE CITY HAD AUTHORITY TO ENACT AND ENFORCE THE ORDINANC~....12

A. To T11e extent The Ordiizance Was Preempted From 2003-2006, TheStatute Automatically Revived It in May 2006 .....................................................13

B. If Reenactment Was Required, The City Council Has Done So ...........................15

C. The Ordinance Has Never Been Specifically Preempted. ......................................16

1. The General Assembly did not preempt the City's home ruleauthority to impose liability on vehicle owners .........................................16

2. 'The General Assembly did not preempt the City's home ruleauthority to administratively adjudicate the violations ..............................1$

3. Plaintiffs' cases do x~ot show that the Ordinance was preempted ..............19

V. PLAINTIFrS' YELLOW LIGHT TIMII~TG CLAIM FAILS ...........................................20

VII. THE VOLUNTARY PEIYMENT DOCTRINE Bt~RS PLAINTIFFS' CLAIMS............23

CONCLUSION..............................................................................................................................24

-i-

TABLE OF AUTHORITIES

Cases

A~~r~.. ITam. Mut. If~.s. Co. v. Plunkett; 2014 IL App (1st) 131631 ......................................................8

Ai~z Pile & Coj~str. Co. v. Utah, 414 U.S. 53 8 (1974) ...................................................................5

Best v. Taylor Mac1~. Yilo~~ks. 179 I11. 2d 367 (1997) .......................................................................9

I3~ridge~vater v. Hotz; 51 I11. 2d 103 (1972j ......................................................................................9

CarZ v. Resnick, 306 Ill. App. 3d 453 (lst Dist. 1999) ................................................................1, 9

Catom~ TYuckir2g, ~r~c. v. City of Chicago, 2011 IL A~~p (1st) 101146 ...........................................20

Chicago Nat'l League I3aZl Club, Inc: v. Th~rn~~soi~, 108 Ill. 2d 357 (1985) .............................9, i0

City of Chicago v. St Joh~n~'s United Clzu~~ch of Chi zst, 404 Ill. App. 3d 505(2d Dist. 2010) .............................................................................................................................3

Czty of Chicago v. Stub~Ia~b, I~~c., 2D 11 IL 111127 .................................................................17, 19

City of Wheato~~ v. LoeJ~op, 399 Ill. App. 3d 433 (2d Dist. 2010) ...............................................:.16

Clcryy >>. Kuhl, 189 Ill. 2d 603 (2000) ................................................................................................8

Cutinello v. Whitley, 161 IlL 2d 409 {1994) ........................................................................9, 10, 11

Flesne~~ v. Youngs Dev. Co., 145 I1L 2d 252 (1991) ........................................................................b

Gendek v. Jel~angzJ~, 119 Ill. 2d 338 (1988) .....................................................................................7

GeJ~naga v. City of Cl~zcago, 2015 7L App (1st) 130272 .................................................................2

Getto v. City ofCl~rcago, $6 I1L 2d 39 (1981) ...............................................................................23

Go~~t'l Inter~rnsurance ~xcl~. v. Judge; 221 Ill. 2d 195 (200b) .................................................21, 22

Ill. Glass Co. v. Chzcago Tel. Co., 234 Ill. 535 (1908) ..................................................................23

Ill. Hotel c~ LodgingAss'n v. Ludwig, 374 Ill. App. 3d 193 (1st Dist. 2007) ...............................12

In ~~e Beln7oi~t Fzre P~~otectzon Distrzct, 111 Ill. 2d 373 {1986) .....................................................11

Irz ~~e Petition of Vefnon Hills, 168 I1L 2d 117 (1995) .............................................................10, 11

.Iol~nson v. NcrtioizN~ide I3a~s. For~~ns, .Inc., 103 IlL App. 3d 631 tlst Dist. 1981) .............................4

h'eatir~g v. Czty of Chicago, 201.3 IL app (lst) 112559-U ..........................................................1,2

Keatrr~g v. City of Chc~xgo, 201.4 IL 116054 ...............................................................................1, 2

1~'~~ox Coll. v. Celotex Corgi., 88 Ill. 2d 407 (1981) ...................................................................._.....7

Igo v. Elje~~ Indus., lnc., 287 Ill. App. 3d 35 (1st Dist. 1.997) ..........................................................7

La~na~~ Wl~zteco Outdoor Corp. v. City of YTS Chicago, 355 Ill. App. 3d 352(2d Dist. 2005) .............................................................................................................................8

Lzly Lake Rd. Defenders >>. Cn~j~. of Mcl~en~ y, 156 Iil. 2d 1 (1993) ........................................13, 14

Med. Disposal Sei~vs., Inc. v. EPA, 286 I31. App. 3d 562 (1st Dist. 1996) .......................................9

N. Ill. Hof~~e Builders v. Casty. ofDuPage, 1.65 I11. 2d 25 (1995) ..................................................12

l~relsor~ v. Cl~zcago Pas~k Dist., 408 Ill. App. 3d 53 (1st Dist. 201 i) ............................................3;4

Ne>>itt v. Lan~felde~~, 157 Ill. 2d 116 (1993) ..................................................................................10

Palm >>. 2800 Lake Sho~~e Dr. Condo Assn, 2013 IL 110505 .................................................14, 18

People ex f~el. ~3u~~~is v. Pfog~^essive Land Dev. If~c., 1.51 Ill. 2d 285 (1992) ..................................3

Peor~le ex rel. Lu~~so~~ v. ?'l~ompson, 377 Ill. 104 (1941) ...............................................................14

People e.~ rel. Ryan v. i~zll. of1~a~~~~over Pat k, 311 Iil. App. 3d 515 (lst Dist. 1999) ....................20

Peo~7e v. 13Xait, 2013 IL 114122 ................................................................................................:..15

Pe~~b~urn v. FirrstNut'Il3ank ofCl~icago, 60 Ill. 2ci 529 (1975) .......................................................2

Poy~~t~a~ooc~ v. Fo~~d Mvtol~ Co., 183 Ill. 2d 459 (1998) ......................................................................5

Rive~~ Pa~~k, last. v. City of I~igl~land ~'ar~k, 184 Ill. 2d 290 (1998) ..................................................4

S'cachitti v. U13S Fin. Servs., 215 Il1. 2d 4~4 (2005) ........................................................................4

Scl~lessznger~ v. Olsen, 86 Ill. 2d 314 (1981) ................................................................................2,3

Senn Paik Nuf~sing Ctr~. v. Mzllei~, 104 III. 2d 169 (1984) ..............................................................21

Smith t~. 13ayef~, 564 U.S. _, 13 i S. Ct. 2368 {2011) ......................................................................3

Steinberg> v. Chicago Med. Sch,, 69 Ill. 2d 320 (1977) ..............................:.....................................5

Sundance Hor~~es, Inc. v. Casty. of DuPage, 195 Ili. 2d 257 (2001) .................................................7

Siaslick v. Rolhchrld Sec. Copp., 12$ IIL 2d 314 (1989) ...................................................................6

Tcrylo~ v. Stu~~gell, 553 U.S. 880 (200$) ..........................................................................................3

Tiinberlrzke v. Illinr Hosl~., 1.75 I1L 2d 159 (1997) ...........................................................................6

Tu~o Hu~~d~~ed Ni~~e Lake Sho~e DN. Bldg. Corgi. v. City of Chicago, 3 Ill. App. 3d 46(1st Dist. 1971) ..........................................................................................................................14

Nude v. Byle,s, 295 Ill. App. 3d 545 (lst Dist. 1998) ......................................................................6

~'oi~ul~nazoglu v. I ake Tor~est Host., 359 Ill. App. 3d 554 (1st Dist_ 1995) ....................................4

Statutes

5 ILCS 100/5-6 ..............................................................................................................................21

23 U.S.C. ~ 109 ..............................................................................................................................21

23 U.S.C. ~ 402 ..............................................................................................................................21

65 ILCS 5/1-2.1-10 ......:.................................................................................................................19

65 ILLS 5/1-2.1-2 ....................................................................................................................18, 19

625 ILCS 5/11-1429 ......................................................................................................................11

625 ILCS 5/11-207 ......................................................................................:...........................11, 17

625 ILCS 5/11-208.1 ...............................................................................................................17, 18

b25 ILCS 5/ll-208.2 ...............................................................................................................16, 18

625 ILCS 5/11-301 ..................................................................................................................21, 23

b25 ILCS 5/11-304 ........................................................................................................................23

625 ILCS 5/i 1-305 ......................................................................................................,.................19

625 ILCS 5/11.-601 ........................................................................................................................11

625 ILCS S/11-604 ........................................................................................................................11

735 ILLS 5/13-217 ......................................................................................................................6, 7

~n Act concerni~lg transportation, Pub. Act 94-0795,2006 I1L Laws 1204 (attached toMem. as Ex. 1) .............................................................................................................................9

Illinois I~ighway Code, 605 ILCS 5/1-101, et seq .........................................................................12

Rules acid Regulations

74 Fed. R. 66730 {Dec. 16, 2009) ..................................................................................................23

-Iv-

Ill.S.Ct.R23 ...........................................................................................

Constitutional Provisions

Ill. Const., art. VII,. 6 ................................................................................

Ordinances

Municipal Code of Chicago, Ill., ~ 2-14-103 .............................................

Municipal Code of Chicago, Ill., ~ 7-24-225 .............................................

Municipal Code of Chicago, Ill., ~ 9-100-030 ...........................................

Municipal Code of Chicago, Ill., ~ 9-1.00-120 ...........................................

Municipal Code of C13icago, Ill., ~ 9-102-060 ...........................................

....................................2

..............................9, 13

...............................24

...............................19

...............................19

...............................24

...............................24

INTRODUCTION

Plaintiffs' Response io the Git~~'s Motio~i to Disn7iss {Response or "Resp.") does nothing

to save their claims. Although they propose several desperate and. inconsistent theories fo1- why

Clarke the only Plaintiff ~~ith a pre-2006 ticket is not time-barred from bringing his nearly

ten-year old claims, these theories diz-ectly contradict well-established legal principles and fail.

Accordingly, because no Plaintiff 17as standing to challenge the Ordinance before May 2006,

when the Statute authorizing the City to adopt the red-light caanera progran3 was enacted, all of

the pre-May 2006 claims must be dismissed. Furthermore, Plaintiffs do not even come close to

satisfying their high burden of proof necessary to show that the Statue itself is unconstitutional.

And, even if they did, none of their arguments undermine the City's cleax home rule authority to

adopt the red light can~eX~a program absent state authorization. Finally, Plaintiffs have failed to

show that there is any legal requirelne~~t, much less any legal requirement that they are entitled to

enforce, regarding their yellow light tuning claims. For all of these reasons, the Court should

grant the City's Motion to Dismiss in its entirety.r

ARGUMENT

L PLAINTIFFS' CLAIMS ARE BARRED BY RES JZIDICATA.

Plaintiffs urge the Court fo ignore the clearl~~ applicable pri~iciples of yes judicata and

allow them to take yet anot~he7 bite at the apple, the same apple that has been finally and

conclusively decided in I~'eating v. City of Cl~zcago, 2013 IL App (1st) 112559-U, affirmed, per

cuiiam, i1~ Keat~i~~~g u. City of Cl~icc~go, 2014 IL 116054. They provide no basis for re-litigating

the near-identical claims. an additional tune, ho~~ever, and to do so ~~ould only ser~~e to frustrate

~ Plaiiatiffs have failed to address the City's argu~~~ents regarding their due process claims. SeeMem. at Part V. Plaintiff's ha~~e the~efore ~aived any aiguinents in tl~a future. See, e.g., Carl v. Res~zick;30b II1. App. 3d 453, 465 (1st Dist. 1999) {arguments not n3ade iil response are waived).

res j~dicata's primary purpose of pt-eveniing wasteful and repetitive litigation. Nor do ~ernaga

or Sullivan address the fact thaf they have each. brought, and lost, individual challenges to the red

light ticketing program in which they could have brought all of the claims they bring here, and

which similarly bar their preser7t claims. See City's Memorandum in Support of Its Motion to

Dismiss ("Mein.") at 7, n.5.~

Plaintiffs f rst wrongly argue that, because the appellate court's decision in Keating is

unp~iblished under Illinois Su~~re~ne Court Rule 23, it is non-precedential and non-binding on this

Courf. Resp. at 1-2. Plaintiffs overlook. the fact that tl3e Supreme Court's dismissal of the appeal

is treated as an affirmance of the appellate court's decision. See, e.g., Peiloran v. First Nat'l

Ba~~~k of Chicago, 60 IlL 2d 529, 530 (1975). Thus, while the Supreme Court's order in Keating

I~as no precedential effect, the appellate court decision certai~lly may. See Ge~~naga, 2015 TL

App (ls~) 130272, 1, n.l, a1~d ~ 14 (citing to and relying substantively oil Keatzng). More

inlportantl5~, the City did 71ot rely on Keatzng as binding precedent; rather, the City discussed

Keat~ii~g only to show how the case acts as r^es judzcata to Plaintiffs' claims here. See Menz. at 4-

7; see also I1L S. Ct. R. 23 (unpublished orders nay be cited "to support contentions of double

jeopardy, res judicata, collateral estoppel or la~u of the case."). There is no doubt that the

Supreme Court's dismissal of the Keatzng appeal resulted in a final decision for purposes of ~~es

judicala, and that the Court can, and should, properly consider Keating in determining whether

Plaintiffs are permitted to bring their claims here.

Plaintiffs also contend that putative class members cannoi be bound by ~es judicata if the

case is disnussed before class certification, relying on Schlessirzger v. Olsen, 86 Ill. 2d 314, 319

~ Since the City filed its Memoradum, the appellate court has issued a published opinion in fiheCity's favor in Gernaga's individual red. light ticketing case. See Ger~~aga v. City of Chicago, 2015 ILApp { 1st) 7.20272 (May 8, 20 15).

-2-

(1981), and several cases decided under federal class action and preclusio~l law. Schlesinger,

however, did not. decide whether ~~es judicator could be applied. to a successive lawsuit broughi by

a putative class member; it addressed only whethef a motion to dismiss should be decided before

a motion for class certification. 86 Ill. 2d at 318-19. Likewise; the federal cases on which

Plaintiffs rely, see Resp. at 2-3, hold. only that uimamed class meii7bels are nod considered pa~~ties

to the litigation. See, e.g., Smith v. 13aye~~, 564 U.S. _, 131 S. Ct. 2368, 2379 (2011), and Taylor

v. Stur~gell, 553 U.S. 880, 891-94 (2000. They do not hold nor do any Illinois courts hold

that res judicc~ta ca7~not be applied. to unnamed class members if t11ey are otherwise in p~~ivity

with the plaintiffs. Moreover, these federal cases decided "the preclusive effects of a jiidginent

in afederal-question case decided by a federal couTt;" Taylof, 553 U.S. at 904, and whether a

federal court could enjoin a state court proceeding under an exception fo the federal Anti-

Injlz~lction Act, Smith, 131 S. Ct at 2370. but "in no way addressed, let alone overruled, this

state's comnloii law regarding privity." Czty of Chicago v. St. Joh~~'s United Cl~urclz of Chi^ist,

404 Ill. App. 3d 505, 513 (2d Dist. 2010).

And ghat is precisely what the City demonstrated: that Plaintiffs were in p~~za~iiy with the

Keatzn~ plaintiffs. See Mem. at 4-5. Privil}~ is a flexible concept, and can be found where

"parties adequately represe~lt tale sarlle legal interests." or if they would be affected by, or benefit

from, t~1e litigation. See St. John's, 404 III. App. 3d at 513, citing People ex ~eZ. 13ur~~is v.

Pr~ogi~essive L~zf~d Dev. hzc., 151 Ill. 2d 285, 296 {1992). See also Nelson v. Chicago Pa~~k Dist.,

408 Ill. App. 3d 53, b2 (lst Dist. 2011) (privity existed where plaintiffs in second ac#ion had

same "overriding concern" as those in first, thus barring subsequent action by nonparties). I-Ieie,

Plaintiffs' legal interests are identical to those in Keatzr~g automated red light tickets issued

udder the Ordinance are void because the Statute and Ordinance are unconstitutional and

-3-

unauthorized3 a~r1d; had the ~errting plaintiffs been successful, Plaintiffs would have benefitted.

What is fibre, Plaintiffs are represented'by the salzle colznsel as in Keatz~7g, further weighing in

favor of Ending privity. See, e.g:, ~'or~u.lmazoglu v. Lake Tor~est Hosp., 359 Ill. App. 3d 554, 562

(lst Dist. 1995); Johnson v. l~~ationwide I3us. Por~n~s, Lac., 103 III. App. 3d 631, 635 (1st Dist.

1981). Indeed, counsel's filing of another identical class action only months after heating was

dismissed by the circuit court and weeks before he filed t11e Keating appellate brief certainly

raises forum shopping concerns.

Plaintiffs iespond that Nelson is not persuasive authority because it was a "taxpayer"

action, not a class action. Resp. at 3. This is a meaningless distinction. Nelson noted that a

taxpayer action is one that is:

brought by private persons in their capacity as taxpayers, on behalf of themselvesa~ld as representatives of a class of taxpayers sim.ilar~ly situated within a taxingdistrict or area, upon a ground which is coi~zi~~on to all men~aber~s of the class, andfor the purpose of seeking relief from illegal or unauthorized acts of public bodiesor public officials .. .

408 II1. App. 3d at 61 (emphasis added), quoiing Scachitti a UI3S Tin. Se~~vs., 215 Ill. 2d 454,

493 (2005). Clearly, this definition of a "taxpayer" action is sufficiently analogous to a putative

class action s~~ch that the Arelson holding applies. Turther~nore, the b'eatzng plaintiffs and their

counsel kr7e~~ they were bringing the action on bel3alf of absent class members, and knew that

auy declaration or ir~jui~ction issued against the City would have the same practical effect for all

~~eisons issued tickets, even if a class were never certified. Accordingly, Plaintiffs' legal

3 P1aiiltiffs contend thafi t1~e claims in Keati~~~g were not "entirely similar" to those here,"especially pertaining to tl~e iulproperly short duration of yello~~~ lights." Resp. at 3', n.l. This contentionis irrelevant, because: {1) improper yellow light duration allegations ~~e~~e asserted in the Keata~~~gcomplaint (see Keating Cotnp., ~ 14, 107, attached to Mem. as Ehhibit 6); (2) res judicata applies notonly to claims that ~~ei~e actually brought but also to #hose tlla~t could have been brought (see Riven Park,lizc. v. Cit}~ of Higl7lar~id Park, l 84 II1. 2d 290, 311 (1998)); a~~d (3) Plaintiffs later rely on bei~~g putativeclass members in not only Keating, btit also Idris, to revive stale claims, tacitly admitti~lg that #hoseclaims could have been, and were, brought as early as 2006.

.~

interests wet-e more than adequately safeguarded against any due process concerns.

Plaintiffs cainlot dispute that. there was a final determination in Keati~~g,~that the claims

brought in that case a~-e nearly identical to those here, and that their legal interests were

vigorously represented by counsel iia Keating. Nor have Plaintiffs offered any sound reasons for

wh~~ this Court sllouid ~~aste judicial resources and revisit claims that have been decided, and

then affirmed, by the Illinois Supreme Court. Plaintiffs' claims should be barred by res judicatu.

II. PLAINTII+F CLARKE'S CLAIMS ARE TIME-BARREll.

Plaintiffs assert several contradictory theories about why Clarke's 2005 claims only

added to this lawsuit irl 20 i 4 are not barred by the five-year statute of limitations. None of

these theories have merit.

First, Plaintiffs argue that Clarke's claims are timely because he was a putative class

member in Idris, a~ld tllezl Keating, and his limitations period was tolled. during the pendency of

those suits. Resp. at 24 {citil~g Steinbefg v. Chicago 112ed. Sc1~., 69 Ill. 2d 320, 342 (1977), and

Am. Pipe ~ Constr. Co. v. Utah, 414 U.S. 538, 554 (1974)). But Idsis does not save his claims:

The Illinois Supreme Court has held that the limitations period for state la~~ claims is not tolled

for putative class members tivl~ile the case is pending in federal colzrt. Por~h~~ood v. Fo~~d Motor

Co., 183 Ill. 2d 459, 465 (1998). Plaintiffs argue that Portivood is inapplicable because Idris was

originally filed in state court and then removed to federal court, a~ld thus the forum shopping

concerns addressed in Poi ttivood are nat present. Resp. at 25, n.14. But ~'ortwood did not limit

its holding to cases originally filed in federal court, nor did it lirliit its reasoning to forum

shoppi~lg issues. Rather, it stressed that avoiding delay was also an overriding concern:

"[B]ecause state co~zrts leave no control over the work of the federal judiciary, we believe it

would be unwise to adopt a policy basing the length of Illizlois limitation periods on the federal

court's disposition of suits seeking class ce~tifieatioll." 183 Ill. 2d at 466. Thus, Poit~a~ood is

-5-

applicable and bilading on this Court.

Because Cla~~ke's limitations period continued to run during the pendency of Ids^is, he had

until January 2010 five years after recei~rillg his ticket to refile his claims. Keating was not

filed until July 2010. Thus, Clarke was already time-barred from being a putative class member

in Keatzng. Nor does the applicable savings provision salirage his claims. 735 ILCS 5/13-217

governs the limitations period for tl~e refling of pendant state law claims dismissed by a federal

court, and provides that a plaintiff "inay commence a new action withi~l one year or wi~hii~ the

refraining period of limitations, whichever is greater." The Id~~is court dismissed the state law

claims on January 16, 2008; thus, the one year time period expired on January 1 b; 2009. See,

e.~., Suslick v. Rotl~cl~ild Sec. Corp., 128 Ill, 2d 314, 320 (1989) (one-}year savings period in

section 13-2 i 7 begins to run when federal court dismisses case and not when any appeal is

resolved); Wde v. 13yles; 295 Ill. App. 3d 545, 546-47 (1st Dist. 1998) (same). Thus, because

the five-year Iinlitations period is longer, Cla~ke had until January 2010 at the latest to file his

claims, and he failed to do so.

Even assuming argzser~do, however, that Clarke's claims were tolled during Ids^zs, his

claims ~~ould sti11 be bat~red, because Clarke caauiot string together multiple case filings to avoid

the applicable limitations periods. Indeed, Illinois law prohibits these very tactics: "[S]ectioll

13-217 expressl}~ permits one, and only one; refiling of a claim even if the statute of limitations

has not expired." Timberlake v. IZlini Host., 175 IlL 2d 159, 164 (1997) (citing Flesne~ v.

Youngs Dev. Co., 145 Ill. 2d 252, 254 ('1991)). Thus, because Clarke relies on being a putative

class member in 1'dris to save his clailns,4 he must abide by the "only one ruling" rule. See,

e.g., ?'imberlake, 1.75 Ill. 2d at 165 ("after the case 3~as been filed a second tine ...the statute

4 The City does not necessarily agree that Clarke would have been a putative class member ofIdi~is; it merely points out tl~e consequences of Clarke's reliance on such to support his arguments here.

-6-

does not. give plaintiff the Y~ight to refile again."); Gef~dek v. Jehangrr~, 119 Ill. 2d 338. 343 {19 8)

("Section 13-217 provides for a limited extension to prevent injustice; it does not authorise an

endless recycling of litigation."); K~ v..~ljer Indus., Ii~c., 287 Ill. App. 3d 35, 45-46 (lst Dist.

1997) (where case dismissed b~ federal court, then refiled and dismissed by state court, second

refiling not pei-~nitted even though it v~ias within one year of federal court dismissal). Because

Keating would be the first i-efiling, Clarke caiznot be a part of this case, a second refiiing. And

even if section 13-217 did not technically ap~~ly, there is no support for Clarke's impermissible

attempt to piggyback Id~fis with Keating, and then Kea~xng with this case, to save his 2005

claims. To allow Clarke to do so would tllw~rt the very purpose the statute of limitations to

discourage the presentation of stale claims and encourage diligence in bringing claims. See

Sundar~ce Hones, Inc. v. Casty. of DuPage, 195 Ill. 2d 257; 265-66 (2001).

Plaintiffs then conveniently change course, ar3d argue that Clarke could nod have

i-easonabl5~ discovered he had been injured uilfil lie read press stories about the City's red-light

camera program in 20 i 4; in other words, that his claims did 11ot begin to accrue until 2014. See

Resp. at 25; see also Clarke Affidavit at '~ 9. In lighi of the arguments Plaintiffs make above,

this contention is absurd. Tl1e named plaintiffs in Zdris and Keating, and even. those when this

case was originally brought in X012; had no trouble timely discovering thei~~ injuries aizd

cl3allenging the validity of the Ordinance as earl}~ as 200b. Clarke's affidavit presents 110 facts

that set hiin apart from these individuals, or otherwise except him fi~om gaining the same

generally-available knowledge. See, e.g., Ki~~ox Coll. v. Celotex Corp., 88 Ill. 2d 407, 41b (1981)

(burden and obligation. orz plaintiff "to -make diligent. inquiry" regarding whether can state viable

cause of action based on injury). Nor do Plaintiffs address, co~itest, or offer any alternative

authority challenging the well-established principle cited in the City's brief that a plaintiff's

-7-

cJai~n that an ordinance is unconstitutional begins to run, at the latest, when the ordinance is

enforced against hun. See, e.g., Lai~rzar~ N~hiteco Outdoor Co~~. v. City of W. Chicago, 355 Ill..

App. 3d 352, 364 (2d Dist. 2005] (constit~itional claiiii ripens upon issuance of ticket seeking

enforcement of challenged law).

Finally, Plaintiffs unpersuasively suggest that, even if Clarke should have known of his

injury ~~~hen he received 11is ticket in 2005, the Court should suspend the limitations period based

on the doctrine of equitable #ollii~g. See Resp. at 25. equitable tolling is appropriate only where

"the defendant has actively misled the plaintiff, or if the plaintiff has been p~evented from

asserting his or her rights in some extraordinary way, or if the plaintiff has mistakenly asserted

his or her rights in the wrong forum." Clay v. Kull, 189 Ill. 2d 603, 614 (2000) (internal

citations omitted). See also Am. Farm. Mist. Ins. Co. v. Plunkett, 2014 IL App (1st) 131631, 33

(no equitable tolli~lg where plaintiff "has not demonstrated that it was prevented in some

extraordinary way from filing a suit against defendants..."). "While equitable tolling is

recognized iii Illinois, it is rarely applied." Id.

Plaintiffs half-heartedly claim that "facts pleaded by Plaintiffs establish efforts, almost a

conspiracy, by the City to Fide from the public that its program was legally unauthorized..."

Resp. at 25. Plaintiffs do not cite to an5~ of these alleged facts, nor do any exis~.s The City

publicly anno~znced a~1d enacted the Ordinance in 2003, tluougll open City Council hearings and

passage, a~7d never. took steps to hide the basis or nature of such legislative action. As made

clew above, otllexs challenged the Ordinaizce as early as 2006. Moreover, Plaintiffs confuse the

doctrine of equitable tolling with the discovery rule. equitable tolling applies where tlae

defendal~t misleads the plaintiff info thinking tl~af he sloes not have to sue yet, or in some other

5 Plaintiffs Dave not brought conspiracy claims, r~or can the City conspire wiil~ itself, and thusPlaintiffs should not be permitted to use: sucIa uiifo~znded allegations as a way to argue equitable tolli~7g.

~.~

way prevents him from suing within the statutory period; it does clot apply to the claim's initial

acc11ia1 date. See, e.g., Mec~ Disposal Sews., Inc. v. EI'A, 286 Ill. App. 3d 562, 570-71 {1st Dist.

1996). There are simply no allegations that the City misled Clarke about the tinging of ~~rhen he

must bring his claims. Accordingly, Plaintiffs have failed to present any circumstances

justifying the tolling of Clarke's five-year limitations period; and his ten-year-old sale claims

should be dismissed.

IIT. THE STATUTE DOES NOT VIOLATE TIDE ILLINOIS CONSTITUTION.

Plaintiffs suggest t1~e Court address the status of the Ordinance first, in order to avoid

deciding the matter on constitutional grounds, see Resp. at 3-4, ignoritlg the fact that home rule

preemption is also a constitutional .question, see Ill. Const., art. VII, ~6. Because each Plaintiff

with a timely claim was ticketed after Public Act 94-0795 (the "Statue") took effect, see Mem.

at 15 & supi~c~ Part II, this Court should begin by evaluating the constitutionality of the Statute,

because if the Statute is valid, the Court need not reach the home rule questions.

Plaintiffs fail to overcome the strong presumption that the Statute is valid and meet their

high burden of showing that it is unconstitutional. See, e.g., Cl~zcago Nat'l League BaIZ Club,

Iizc. >>. Thoi~~psofa; 108 Ill. 2d 357, 368 (1985). In fact, Plaintiffs abandon their claims that the

Statute violates the uniformity clause or the equal protection clause of the I11if1ois Constitution.

See Resp. ai Part IIL Accordingly, Plaintiffs' sole remaining basis for challenging the Statute is

that it is prohibited "local" legislation. Cf. Carl v. Resnick, 306 Ill. App. 3d 453, 465 (1st Dist.

1999) (arguments not made in response are waived).

It is well-established thai courts apply the rational basis test to local legislation challenges

under the Illinois Constitution of 1970. See, e.~;., Best v. Taylo~~ Mach. Works, 179 I1L 2d 367,

393 (1997); Cut~zr~ello v. Whitley, lbl Ill. 2d 409, 417 (1994); Bridgewater v. Hotz, 51 Ill. 2d 103,

110-12 {1972). Contrary to folu-and-a-half decades of case law, PlaintifFs argue that a1~y

-9-

legislation that names a particular locality is cue facto unconstitutional. See Resp. at Part IIT{A).

Plaintiffs ilnpermissibl~~ base this argtul~ent solely on statements found outside the constitutional

text. See Ne>>itt v. Ltzngfelder, 157 Ili. 2d 116, 136 (1993) ("It v,~ould be improper . . to

transform statements made during the constitutional convention into constitutional requirements

where such statements are clot reflected in the language of the constitution" (internal quotations

omiited)). Mote importantly, the Illinois Supreme Court has emphatically rejected such a

mechanical test for evaluating the constitutionality of legislationaddressing the needs of specific

geographic areas of the State. See, e.g., Cutinello, 161 Ill. 2d at 422 (legislature rationally

concluded there was gieater need for general transportation financing in three named counties; to

hold otherwise would improperly make it more difficult for Getleral Assembly to address

regional transportation needs). Plaintiffs also discuss the historical and policy concerns related

to local legislatio~l, see Resp. at Part III(C), bud, respectfully, this Court has z10 authority to

depart from the clear and consistent precedent holding that the rational basis test is used to

evaluate local legislation challenges.

Plaintiffs' application of the rational basis test to the Statute is also flawed. See Resp. at

Part IIT(B). A statute premised on population or territorial differences that is challenged as

uncoi~stittrtiorial local legislation will survive if "founded upon a rational difference of situation

or condition existing in the persons or objects" that are the subject of the law, and "there is a

rational. and proper basis for the classification. in view of the objects and. purposes to be

accomplished." In i~e Petition of I~er~2on Hills, 168 Ill. 2d 117, 123 (1.995); accv~~d, e.g., Chicago

Nat'l League, 108 Ill. 2d at 369. !~ statute is "not an unconstitutional special or local law merely

because of a legislative classification based upon population or territorial diFferences." I~ernon

Hills, 168 Ill. 2d at 122. Indeed, the legislature nay draw lines, especially with respect to

-10-

transportation, by singii~lg out individual localities by name w11en doing so is justified b}~

ten~itorial differences.6 See C~rtif~~ello, 161 Ill. 2d at 421-22.

He1e, as the Cit}~ has explaix~ed,the Statute affects eight counties, and t11e muiucipalities

~~ithin them, fihat are distinguished from all others in Illinois by their density and proximi~ to

major urban centers Chicago and St. Louis. See Mem. at 10-12. Under the rational basis test,

~'laintiffs are required to "rebut" the City's arg~unent that density and proximity to Chicago o~~ St.

Louis reasonably distinguish the eight specified counties, and the municipalities within them,

from others. See Cuti~~ello, 161 I11. 2d at 422. Plaintiffs meager attempt to do so, in a footnote

discussing the population of Illinois municipalities in 2005, see Resp. at 16, n.l1, necessarily

fails. Plaintiffs do not identif~~ axlother geographic region of Illinois that was similarly situated

near one of the 50 largest cities zn~ the United Stakes iii 2005, or which faced similar traffic

problems, nor can they. I~ldecd it might even be irrational for such a classification to be based. oi~

proximity to the largest municipalities in Illinois, since vehicular traffic freely crosses state lines.

Plaintiffs also attempt to derive a rule of de facto unconstitutionality from T~eryzon Hills,

168 Ill. 2d 117, and h~~ ~~e 13elnzofzt~ Fire P~~otectzon Dishzct, 111 .Ill.. 2d 373 (19$6), which both

gave the power to consolidate lire protection districfis only to municipalities in certaiXl

population-defined counties. From these t~~o cases, Plaintiffs claim that all laws which give

powers to a municipality based on characteristics of the county in which t11e munici~~ality is

located are "two-tieY" legislation and thus, de,facto ii~rationai. Resp. at 19. Plai~itiffs' sweeping

6 Plaintiffs. nay be unaware of other provisions which authorize local regulation of individualconduct "only in certain named pa~ts of.the state," Resp. at 16-17, but they cei-tainiy exist. For example,the same eight ~ian~ed counties are allowed to adopt a lower maximum speed Limit on all highways, roads,and streets, including those under state jurisdiction, b25 ILCS 5/11-601, while other counties andlocalities are not, 625 ILCS SI11-604. ~~In r11e same eight named counties (plus portions of three more),idling by diesel-fueled vehicle is prohibited, b25 ILCS 5/11.-1429, and municipalities in those specifiedareas, but not others, may adopt consistent local ordinances, 625 ILCS 5/11.-207.

-11-

argument fails because here the Statute gives po~e~- to both tl~e named counties and the

municipalities within them. This is bot11 entirely rational and consiste~zt with other laws. For

example, t13e General Assembly has established amulti-tiered system for operatio~i of roads and

highways; dividing responsibility between the State, counties, towi7ships, and municipalities.

See Illinois Highway Code, 605 ILCS SI1-101, et seq.; id., art. 5 (County administration of

Highways); id , art. 7 (iilunicipal administration of streets). And as noted above, both the eight

named counties, and the mlulicipalities ~~ithin them, ase different from all other localities in

Illinois because of their proximity to major urban center. It is also rafional ~o authorize red light

cameras in all geographically-proximate municipalities (and in surrounding unincorporated areas

controlled by counties), regardless of populatioX7 or home rule status; to address traffic co~~cerns,

because just as traffic fi-eely crosses state lines, it also f7-eely crosses municipal boundaries.

~ina115~, the possibility that t17e General Assembly could have conceived of a different

law or, as here, some members of the General Assembly actually did, see Resp. at 17--does

not mean that there is no rational basis for the lati~ which was enac#ed. See, e.g., N. Ill. Hoi~~e

I3uzlders v. Cnty. of Dul'age, 165 Ill. 2d 25, 40 (1995) {"validity o~ one statutory classifcatioll is

nod properly tested by reference to another-"); IZI. Hotel c~ Lodging Assn v. Ludia~zg, 374 Ill. App.

3d 193, 197-98 (lst Dist. 2007) (that draft legislation would have applied. statewide is irrelevant

in deciding whether law applicable only to Cook County is impermissible local laver). For all of

these reasons, the Stafute is valid and constitutional and Plaintiffs' claims should be dismissed.

IV. THE CITY HAD AUTHORITY TO ENACT AND ENFORCE THE ORDINANCE.

Because t11e Statute is constitutional, the City had explicit. statutory authority to enforce

the Ordinance against Kata, Sullivan, Rami, aX~d Gernaga; wllo each ~~eceived their tickets in or

after September 2010. ~S'ee Compl. ~~ 175, 193, 216, 229. Plaintiffs argue that even if the

Stahl#e is upheld, fhe Ordil~ance was still void and did not authorize the City's ticketing pro~ranl

-12-

in aild after 2006. each of Plaintiffs' arguments fails because: (a) a iuunicipality is not required

to reenact a preempted ordinance afler preemption is lifted; (b) to the extent reenactment eras

7-equired, the City has done so; and (c) the Ordinance has 1~ever been preempted.

A. To The Extent Tlie Ordinance Was Preempted From 2003-2006,The Statute Automatically Revived It in May 2006.

Assumil7g, ar~guendo, that the City's home rule power to enact the O~~dinance was

preempted in 2003 when the Ordinance was first enacted, the Statute repealed preemption and

the Ordinance became fully effective iii 2006. See Mem. at 16-17. Plaintiffs are simply wrong

about the chronology in Lily Lake Road Defer~de~~s v. Cozanty of McHen~~y, 156 Ill. 2d 1 (1993).

See Resp. at 12. The ordinance at issue in Lily Lake was preempted whe~1 enacted. Later, when

statutory preemption was repealed, the ordinance became effective automatically. There, the

Supt-eme Court held That: "An ordinance which is preempted is not null. and ~~oid. Instead, the

preempted ordinance is simply suspended or rendered. une~lforceable as long as the conflicting

legislation of a superior legislative body remains in effect. Repeal of the preempting legislation,

ho~~ever, revives or reinstates the preempted legislation l~~zthout ex~~r~ess ~~eenactment." Id.. at i 5

(emphasis added).

Here, Article VII, section 6{a) of the Illinois Constitution. of 1970 gives the City tale

power to iegulate a~3y matter pertaii~ulg to its govermnent and affairs, including adoption of a red

light camera program. Plaintiffs claiill that when the Ordinai3ce was adopted in 2003, various

The County Zoning Act of 7935 gave McI~eur-y County the au#hority to "enact zoningordinances to i-egulate the use of land for t7~e common good," including the antl~ority to "restric#[] #i1e useof land for surface mining operations." 1:56 Ill. 2d at 6-7. On July 1, 1970, the General Assemblyadopted the Illinois Envirom11e~7ta1 Protection Act ("IEPA") which preempted, but did not repeal,McHei~iy County's statutory authority fo regulate su~~face ~~~ining through zoning. Id. at 7, 11. In 1.979,during the period of preemptioli, McHem~y County enacted an ordinance which ~equired a couditior3al usepermit for certain milling activities. Id. at 5. At its inception, d1e ordinance could not be enforced. td. In1981, the General Assembly amendedthe~I~PAto no longer preempt local regulatio~~s of surface 1ii~i~~g.Id. at 13-14. At that ~~oint, the ardinance was fully effective without elpt~ess x-eenactmeut. Id. at 15.

-13-

sections of the Illinois Vehicle Code ("TVC") preempted the City from exercising that power.

(The City disagrees. See infra Part IV.C.) Then, in 2006, the statute provided ne~~ statutory

authority to no11-home-rule counties and ~~l~.inicipalities in t11e specified regions, and removed. and

question about whether home-rule municipalities in those regions (like the City) were preempted

from using their home rule power to adopt red light camera progr~zns going forward. Thus Lily

Lake answers the exact question presented here: even assuming earlier preemption, the

Ordinance could be enforced, at the latest, oi~ the Statute's effective date. 156 Ill. 2d at 15.

It is the City's constitutional home rule authority that distinguishes this case fioil~ those

pre-3970 cases cited by Plaintiffs, although the rule remains the salve: "the legislature may, by

statute, validate the illegal or defective exercise of a power where the poorer exists at the time its

exercise was attempted." People ex rel. Lamson u. Thompson, 377 Ill. 104, 112 (1941). See

Resp. at 11. In Two Hundred Nine Lake Shof~e D~ive Buzldz~zg Cor^p. v. City of Chicago, 3 Ill.

App. 3d 46 (lst Dist. 1971), the court found that the City had no authority to regulate

discriminatory housing practices when i~ adopted an ordinance aiteinpting to do so on July 11,

1968, because although the legislature had recently enacted a law granting the City such

authority, that la~~ did not take effect until July 1, 1969. Id. at 49. Tl1at case was decided under

the Constitution of 1870; which did not recognize horl~e rule. Id. at 49-50. "The home mule

provisions of the 1970 Illinois Constitution were designed to alter drastically the relationship

between our local and state governnsents." ~'al~rz v. 2800 Lake Shope D~. Condo Ass'r~, 2013 IL

110505, ~ 29 (citations omitted). Under the 1970 Constitution, home rule units have broad

powers, granted b~ the Constitution itself, which "[t]he General Assembly may ... p~~ee~pt .. .

by exp~~essly lin~ifillg that authority." Id. !(~ 30, 31 (citations omitted) (emphasis added).

Because the City's home rule .authority was, at most, pYeempted from 2003-2006, the

-14-

Ordinance's validity is unquestionable after the Statute's enactment. A law which is preempted

is at most comatose not a cadaver, _see Resp. at 13 and to the extent it was preempted. in 2003,

the Ordinance u~as fully revived. by the Statute on May 22, 2006.

B. If Reenactment Was Required, The City Council Has Done So.

P1aitltiffs' argiunent that a law which is void ab iniCio requires repeal and reenactment to

cure earlier deficiencies was also eap7~essIy rejected by the Illinois Supreme Court in People 1~.

Blai~~, 2013 IL 114122. Plaintiffs quote 131ai~~, Resp. at 11, but ignore its clear holding: A law

that is unconstitutional and void ab in~ztio is clot "nonexistent," it is merely "uzlenforceable."

2013 IL 114122, ~ 36. To t11e extent that older cases hold otherwise, that reasoning was

overruled by Blair; which observed that while the courfs have the power to declare an

unconstitutional statute void, the courts cannot, coi7sistent with the separation of powers clause,

"x-epeal or otherwise render Ca] statute nonexistent." Id. '~ 30. Thus, Constitutional infirmity may

be cured by amendment to the utzconsti~tut~ioi~al law or ar~otl~e~~ la~v and, while amendment and

reenactment of the problematic law are both permissible cures, neither is "required as a platter of

law." Id.. ~j~J 31, 36. `I'o evaluate whether an amendmer~lt is intended to cure actual or potential

infirmities, t11e courts look to legislative intent. Id. 37.

The City has Yestructured and revised the Ordinai3ce at least four tines since 2006, on

several occasions ai~lendiilg it to specifically reference provisions of the Statute. See Mem. at 17

& fix. 9. Clearly, the City Council's intent has been to continue the law in effect, to take

advantage of t11e legislature's authorization, and conform to its requirements. Id. And the first

amendnlei7t which expressly referenced the Statute was effective January 1, 2008 prior to the

issuance of Kata, Sullivan, Rani, ai d Gernaga's tickets so it is unnecessary for the Court to

decide if the Ordinance was revived- {to t11e extent i~ needed to be) on the Statute's effective date

in 2006 or the effective date of the first amendment of the Ordinance after that in 2008.

-15-

C. Tile Ordinance Has Never Been Specificall~~ Preempted.

As explained previously, the Court Heed izot consider the City's constitutiona111ome rule

authority for the Ordina~lce because the City had stUtutory authority for the Ordiziance in relatio~l

to each timely claim. Plaintiffs, however, base their arguxnei7ts on the incorrect assertion that the

City was statutorily barred froil~ enacting the Ordinar7ce in 2003 (oi~ continues to be barred, if the

Statute is invalidated). See Resp. at Parts ILA, III. This argunlexlt necessarily fails with respect

to both the City's hone rule authority to impose liability on vehicle owners and administratively

adjudicate those violations. Plaintiffs do not contest that regulating traffic safety pertains to the

City's government and affairs, see Resp. at Park ILA, and Plaintiffs fail to identify any statutory

provision that expzessly and specifically preempts the City's constitutional home rule authority

to enact the Ordinax7ce, ~11ich is what the Illinois Constitution requires. See Mem. at Part IV.C.

L The General Assemble did not preempt the City's home ruleauthority to impose liability on vehicle owners.

First, Plaintiffs misconstrue the City's argument regarding the IVC as it existed in 2003.

See Resp. at 4-5. 1~t that. trine; the IVC did not limit a home rule unit's ability to sanction a

vehicle's o~vt~~e~~ when his or her vehicle is caught by a camera (and not a police officer) violatixlg

a red light signal. See Mem. at 19-20. The IVC prescribes methods for enforcement against

irresponsible drive~~s, while the Ordil~ance imposes a wholly-consistent punishment o~z

irresponsible vehicle owners. And IVC Chapter 11 only limits the authority of home. rule writs

to adopt "inconsistent" local laws. 625 ILCS 5/11-208.2. Ho1ne rule ~nui~icipalities retain t11e

a~.ithority to adopt stricter local lawswhich further the spirit and purpose of the IVC. City of

Wheaton v. Loer~op, 399 Ill.l~pp. 3d~33, 436 (2d Dist. 2010). Thus the IVC did not preempt the

City from enacting the Ordinal~ce in 2003.

Furthei-ino~e, the Ge~leral Assembly's intent to preempt local regulation must be specific

-16-

and explicit home rule preemption may not be implied by t11e courts. See Me~71. at Part IV.

Plaintiffs' Response fails to identify any statutory provision which meets this exacting test.$

First, Plaintiffs rely on 625 ILLS SIl 1-207, ~~hich states that the provisions of Chapter 11

of the IVC (the Rules of the Road) "shall be applicable and uniform throughout this State," and

that "i10 local atrthority shall enact or enforce any ordinance, rule or regulation in conflzct with.

[Chapter 11 ] unless expressly authorized. herein." Id. (emphasis added). These Rules of the

Road including the provisions concer~~ing red light signals are applicable a~1d uniform in the

City, just as in the rest of the State. The 07-dinance does not change or negate airy provision in

ChapteY~ 11 for example, it does ~zot permit drivers to violate red light signals, while state law

requires d7ivers to obey theirs. Nor does the Ordinance "conflict with' any provision in Chapter

11. Tl~e Ordinance creates liability for ou>r~ers and does not apply when the driver is ticketed

under Chapter 11 (or the equivalent ordinance). As such, the Ordinance fits comfortably withii3

section 5/11-207's express authorization for local authorities to "adopt additional. traffic

regulations which are not in conflict wit11 the provisions of this Chapter." Id.

Likev~~ise 625 ILCS 5/11-208.1 requires Chapter 11 to be "applicable and uniformly

applied a11d enforced tluoughout this State." Id. Again, Chapter 11's requirement for drivers. to

obey red light signals is a~~plicable in the City, and it is applied and enforced in the same manner

in Chicago as elsewhere. Plaintiffs complain that "tuiiforrn" means red light violations must be

enforced by police officers; prosecution must occur in circuit court, and violations must be

reported to the Secretary of State. Resp. at 6. Bart that is exactly how Chapter 11 is enforced in

g Plaintiffs' home rule argl~inents that rely on generalities about the riles of t1~e road, Resp, at 4;"genetal[~" proscription, Resp. at 6; or the interpretive docri-i~1e of exp~~essio unis, Resp. at 7, are whollyunsupported by the clear and consistent body of precedent which req~zires express a~1d specific legislativelanguage before 3~ome rule authority is preez~~pted. These arguments ask this Court to igtsore decades ofprecedet admonishing that the llon~e rule provisions of the Coustitutio are "desi~led to preveuf impliedpreemption, or preemption by judicial iriterpretatioi~." Cit}~ of~Chicc~go v. Stubl~ub, 2011 1L 111.127, x(21.

-17-

the City. It is only wlleli applying ar~denforcin~ Chapter 11 against tl7e driver is not possible

(e.g. ~~~hen i~o police officer observes~ihe violation) that the Ordina~lce imposes a different kind

of liabilit~r on the vehicle's owner. This, the Ordinance applies when Chapter 11 cannot be

applied. Because specific language a~1d intent is required 10 effect home rule preemptio~l,

Section 5/11-208.1's requirement regarding uniforn3 applicatio~~ and enforcement of Chapter 11

simply does not limit the City's authority to impose on vehicle owners a different kind of

liability not found in Chapter 1 L Indeed, a statute that is not "ir1 the required fo~-~n" does not

preempt, Palm, 2013 IL 110505, 42, and even "[c]omprehensive legislation that conflicts t~vith

au ordinance is insufficient to limit or restrict home rule authority;" id., 43.

Finally, Plaintiffs rely on 625 ILCS 5/I1-208.2, which provides that Chapter 11 "limit[s]

the authority of home 1ule units to adoptlocal police regulations i~~consiste~~t~ he~~ewith." Id.

(emphasis added). Although this contains the language required for pi-eemptioi~, it does not

apply to the Ordinance because, again, the Ordinance is not inconsistent ~~ith anything in

Chapter 1 L The Ordii~alice does not apply when Chapter 11 is enforced against the vehicle's

driver, and. not~~ing in t1~e Ordinance prevents the enforcement of C1lapter 11 against dri~~ers. It

is plai~ily not inconsistent to impose liability on vehicle owners for a different offense.

2. The General Assembly did not preempt the Cit~~'s home ruleauthority to administratively adjudicate the violations.

The City, likewise, may adjudicate liability for violations of the Ordinance in

administrative proceedings. The Illinois Mlmicipal Code generally authorizes administrative

adjudication of municipal offenses. There is an exception. for "a similar offense [to one under

the IVC] that is a traffiic regulation governing the movement of vehicles." 65 ILCS 5/1-2.1-2.

For this statutory authorization not to apply, the Ordinance must be both "similar" to all "offense

under the Illinois Vehicle Code" and "a traffic reg~ilation gove~xling the movement of vehicles."

-18-

Id. The Ordinance is neither.

first, as discussed, the Ordinance creates liability for o1~~ners of vehicles that violate red

lights, while the 1VC only provides a pe11a1ty for d~~ive~s who violate red lights. See, e.g., 625

ILLS 5/11-305. The IVC simply does not prohibit the "exact sa~~e conduct" that is proscribed

by t11e Ordinance, cf. Resp. at 7, and because the violation is not "similar" to any provision of the

IVC, adn3inistrative adj~zdication is authorized by 65 ILCS 5/1-2.1-2.

Secoxld, the Ordinance gove~ns the o~1~ersliip of vehicles, rather than their movement, by

creating liabilit~~ for owners whose vehicle is used in the commission of an illegal act. In _this

way it is similar to nlul~erous other offenses including parking regulations; MCC 9-100-

030(a), and laws permitting impoundment of vehicles found to contain drugs, rd. ~ 7-24-225

where the owner is liable for illegal use of the vehicle, but not fog the underlying illegal act per

se. And that is precisely why the offense is not reportable as a driving violation because the

liability is premised on vehicle ownership rather than t11e owner's driving.

Finally, unlike the IVC, the Illinois Municipal Code does not p~~ee~~pt home rule systems

of administrative adjudication. Quite the opposite, it acknowledges that Home rule izsu~licipalities

have authority to create administrative adjudication systems in addztio~2 to tl3ose authorized by

statute. Mein. at 22; 65 ILCS 51i-2.1-10. Plaintiffs fail to cite any statue that eXpressly

preempts the City fi~o~il using its I~oifize yule a~itllority to provide for administrative adjudication

under the Ordinaxlce, even if it is outside the express authority of the Ill`i~aois Municipal Code,

and, again, "implied preemption" is prohibited. See StubHub, 2011 IL 111127, ~ 27.

3. Plaintiffs' cases do not show that the Ordinance ~cvas preempted.

Plaintiffs' relia~lce on cases involving other types of ordinazices does not assist their

preemption argument because preemption is content-specific, and whether pree~~iption did or did

not exist in another case, concerning different laws, carulot aid the analysis here.

-19-

None of Plai~ltiffs' cases is on point in any event. In People ex ~~el. Ryan v. Village of

Hanover Paik, a ll Ill. App. 3d 515 (1 s~ Dist. 1999), the ordinances a~ issue did not create a new

offense, but created alternative enforceinen~ programs that allowed those charged with violating

the IVC to pay a settlement and avoid couz-t adjudication, which "eliminated the possibility of the

offender receiving a conviction for the offense and having the conviction reported to the

Secretary o~ State." Id. at 518-19. The court held that these progra~l~s disrupt t11e Liniform

enforcement of Chapter 11 arld "violate the spirit and i~~tent of the [IVC]." Id. at 524. Hanovef

Park does not affect the Ciiy's authority to enact or enforce the Ordinance because the

Ordinance is not similar to any provision of the IVC. Indeed, the HarzoveJ~ Payk court

acknowledged that "the legislature has not preempted the field of traffic regulation." Id. at 525.

Nor is there a conflict with Catom Trucking, Inc. v. City of Chicago, 201 i IL App {lst)

101146. See Resp. at 8. Ccrtorn concerned provisions foi~ liability for the operation of

overweight vehicles on City streets that were similar to provisions of Chapter 15 of the IVC.

2011 IL App (1st) 101146,'~'~ 13-14. The colu-t concluded that these ~-aff~c regulations governed

the movement of vehicles and could not be enforced through administrative proceedings. Id.

'~ 18. Nothing in Caton shows that the Ordinance is also a traffic regulation governing the

movement of vehicles that cannot be enforced through administrative proceedii7gs. To t13e

coz~tiary, there is no provision of the IVC which is similar to the Ordinance.

In short, independent of the Statute, lle Ordinance pertains to the City's ~overninent and

affairs and the General Assembly has not exp~essed any specific intent to preempt the City from

imposing liability on vehicle o~mers for allowing their cars to be used. t~o violate red lights or

administratively adjudicating such violations.

V. PLAINTIFFS' YELLOW LIGHT TIMING CLAIM FAILS.

Plaintiffs fail to state a valid c1ai~11 with respect to the dining of yellow lights because

-20-

no11e ~of t11e documents on which t17ey rely ~o establish a ininimur~i duration are legally

enforceable. Fl~rther, Plaintiffs rnisundeistand or misrepresent the significance of t11e documents

they cite. And finally, even if Plaintiffs lead a legal right to enforce the federal Manual on

Uniform Traffic Control Devices ("MUTCD") or the "Illinois Manual," their Complaint does not

plead facts to establish that the traffic signals at issue are subject to the cited timing provision,

which, at most, applies to traffic signals installed oi~ upgraded after January 15, 2010.

First, there is no legal basis for Plaintiffs to enforce the yellow iigllt timing

"requirements" they assert. 23 U.S.C. ~ 109(d), gives the U.S. Secretary of Transportation the

authority to approve all traffic signals it does no# create a private right of action or authorize

ixzdividual motorists to decide which traffic signals they will and will not obey based on federal

regulations. 23 U.S.C. ~ 402(a) requires the State of Illinois to adopt an approved highway

safety program, but the State's statutory obligation and its coln~liance with that obligation are

legally district. And the MUTCD, standing alone, is explicitly a set of guidelines and not a

"legal requirement." See Mem. at 26. V~l~ile the IVC requires IDOT to adopt an "Illinois

Mazzual," which would be binding on Illinois municipalities, 625 ILCS 5/11-301, IDOT has not

inet this requireme~lt as a matter of law. See Mem. at 26 & n.l~-.9 Because IDOT published the

"Illinois Manual" without complying with the Iliil~ois Administrative Procedure Act ("IAPA"),

the document is ~~ithout legal effect. See Senr~z Park Nun sing Ctr. v. Millet, 104 Ill. 2d 169, 181

(1984). Plaintiffs' reliance an Go~lern~~ental Ii~tetirzsurance Excha~~ge v. Judge, 221 Ill. 2d 195

(2006) does not. save their claim. Theme, the Supreme Court referred. in dictum to IDOT's

9 IDOT repealed the last formally-adopted editio~i of tl~e "State manual and specifications for aunifoi-~n system oftraffic-control" i11at it is required to adopt try 625 ILCS 5/11-301 in 1990. See Mem. at26 and Ea. 12 {Illinois Register,-"Notice of Repealer"). Since that time, it leas continued #o "publish" i1e~~~editions, but the IAPA declares these efforts "unautl~oY~ized" and precludes these publications from lavingany legal significance. See 5 ILCS 1.00/5-6; Semi ~'ar~k, 104 Ili. 2d at 181.

-21-

decision to "publish" an Illinois Manual, after repealizig the prior va1id15~-adopted version, but it

did not consider the legal va~liciity of that action under tl~e IAPA. 221 Ill. 2d at 201. Because the

MUTCD, on its ow~1, is not legally enfo~~ceable, and because the "Illinois Manual" is legally

ineffective, Plaintiffs have identified no legal basis to enforce any provision of either document

to impose mix~imuin yellow light durations upon the City.

Second, Plaintiffs either misread or misrepresent the import of the MUTCD provisions on

yellow light duration. Plaintiffs claim that the MUTCD's reference to "engineering practices" in

sections 4D.26(03) and (07) "expressly directs" the use of the formulas found in the Institute of

Trallspoi~tation Engineers' Ti~affzc Connol Devices Handbook and Mar~uc~l of Ti~af~c Signal

Desig~~ to determine yellow light duration. Resp. at 23. This is plainly wrong. See Mem. at 27

and fix. 11. These sections of the MUTCD state:

' The duration of the yellow change interval s11a11 be determined usingengineering practices.

7 Engineering p~actices for determining the duration. of yellow change andred clearance intervals can be found i1~ ITE's "Traffic Control DevicesHandbook" and in ITE's "Manual of Tra~~c Signal Design" (see SectionlA.11).

MUTCD (2009) ~ 4D.26 (Mem. Ex. 11) (formatting omitted). Section 4D.26(03) is designated a

"standard" and section 4D.26(07) is designated as "support." Id. In the MUTCD, "support" is

"an iilforxnational statement that does not convey czny degiee of mandate, Necornmendcrtio~~,

authoYization, prohibition, o~~ enfoiceable co~~~dztzor~." Id. ~ lA.I3(Oi)(D) (emphasis added).

Thus, 4D.26{07) does not coin~~el use of the ITE publications. further, section lA.11

{specifically referenced in 4D.2b(07)) states that the ITE's Tr~af~c Co~~t~~~ol Devices Ha~~dbook

aild Manual of Traffic Sig~~al Design are merely "useful. sources of information with respect to

use of [the MUTCD]." Icy 1A.11(04). T11e MUTCD simply does not r~equi~~e a yellow 1ig11t

duration of either 3.2 oi~ 3.6 seconds on a 30mph lever roadway as Plaintiffs claim, Resp. at 23,

-22-

aild caiznot be used to excuse Plaintiffs' illegal conduct.10

finally, even if Plaintiffs had a legal basis to enforce the MUTCD or treat tl~e MUTCD as

having been validly-adopted as ti7e Illinois Manual ~efe~enced in 625 ILCS 5/11-301 and ~/11-

304, the Complaint fails to plead the facts i3ecessary to establish a violation of the MUTCD's

yellow clearance interval duration provisions because the MUTCD does not require retroactive

compliance. The MUTCD onl}' requires that "non-compliant devices on existing highways,"

which remain serviceable, be "brought into compliance with the current edition if the National

MUTCD" as part of "systematic upgrading." Mem. at 26. Plaintiffs do not allege that the

signals which their vehicles were caught violating were installed or upgraded oi~ or after January

15, 20l 0, the effective date of the 2009 MUTCD. See 74 Fed.. R. 66730, 66730 (Dec. 16, 2009).

Without such an allegation, Plaintiffs fail to allege the i~ecessa~~y elements to obtain ~a declaratory

judgment on their claims pursuant to section 4D.26 of tl~e 2009 edition of the MUTCD.

VIL THE VOLUNTARY PAYMENT DOCTRINE BARS PLAINTIFFS' CLAIMS.

Plaintiffs ha~~e not overcome t11e clear application of the voluntary payment doctrine to

their restitution claim; because they have not alleged a mistake of fact or "some necessity which

amounted to com~~ulsion, aid payment was made under the itlflue~~ce of such compulsion."'

Getto v. City of Chicago, 86 IlL 2d 39, 48-49 (1981) (quoting ZIZ. Glass Co. v. Chicago Tel. Co.,

234 Ill. 535, 541 (1908)).

'o At most, tl~e MUTCD t-equires ti~at yello~~ light.duration for traffe signals installed orupgraded after January 15, 2010, be determined using "e~~gineering practices." The MUTCD does notdefine "engineering practices," ]lowever it defines "engi~ieei~ing judgment" as "the evaluation of availablepertinent information and tine application of appropriate principles, provisions, and ~~ractices as containedi~3 t}lis Manual and otl~ei~ sources, for #ile purposes of deciding upon the applicability, design, operatioi7, orinstallation of a traffic control device. Engi~~eeri~~g judgil~ent shall be exercised by an engineer .. .through the application of procedures and criteria established by the engineer. Documentation ofengineering judgn3ent is not required." MUTCD _iA.l3(03)(64). Plaii7tiffs do riot allege nor can theyt13at the City does not employ appropriate naffic engineers who apply "engineering judgment."

- 23 -

Plaintiffs argue that the poteiztial adverse legal co~~sequences they faced if they failed to

pay doubling of fines, booting of vehicles; or revocation of driver's licenses created the

necessary coercion or compulsion to render their payments involuntary. Resp. at 26-27. They

are wrong. Plaintiffs could have challenged their tickets without incw-ring any adverse

consequences until after the proceedings were resolved. The ordinance is very char that "after a

determination of liability under this chapter has become final and the respondent 11as exhausted

or failed. to exhaust judicial procedures for revie~~~," a final detern3inatiorl of liability notice is

sent, and the respondent becomes subject to collectio7i procedures for "a debt due and owing the

city" under sectioil2-14-103 or, eventually, immobilization of the vehicle under section 9-100-

120. MCC 9-102-Ob0(a) & (b) (emphasis added). Tllus, Plaintiffs had alternatives to paying

the fines and instead chose, voluntarily, to pay.

Plaintiffs also contend tha# the City's argument on volu~itaiy payment mistakenly

depends on a requirement that Plaintiffs exhausfi their administrative remedies. Resp. at 28. But

the City did not make such an argument. Instead; the City argued tlsat the availability of the

choice to challenge payment, ra#ller than voluntarily paying their fines, subjects Plaintiffs to the

affirnlative dei'erlse of voluntary payment. Nor is it preina#ure, as Plaintiffs suggest, to taise the

defense now. While Plaintiffs note that the question of duress is generally one of fact, see Resp.

at 28, it is clear that no duress existed here as a matter of law. Plaintiffs admit they paid their

fines, and cannot contest the fact that they could have challenged their tickets without incur~ing

any adverse legal consequences. Accordingly; Plaintiffs' restitution claims should be dismissed.

CONCLUSION

For the fo1egoing reasons, the City respectfully requests that the Court dismiss Plaintiffs'

Second 1~rnended Class Action Complaint in its entirety with prejudice.

-24-

Date: May 29, 2015 Respectfully submitted,

STEPHEN R PATTON,Corporation Co ~~ o he City ~~icago

By: '~Assistazlt corporation Coualsel

-25-