Tamara Simic v. City of Chicago , 851 F.3d 734 ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2496
TAMARA SIMIC,
Plaintiff-Appellant,
v.
CITY OF CHICAGO,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15-cv-00019 — Sharon Johnson Coleman, Judge.
____________________
ARGUED FEBRUARY 16, 2016 — DECIDED MARCH 20, 2017
____________________
Before POSNER, WILLIAMS, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. On November 7, 2014, plaintiff
Tamara Simic was driving in Chicago and texting on her cell
phone. A police officer issued her a ticket because texting
while driving violates a Chicago ordinance. Simic failed to
pay the ticket, and the City took steps to collect a fine. Simic
then sued the City, claiming that the ordinance is unconstitu-
tional. She moved for a preliminary injunction to halt enforce-
ment of the ordinance throughout Chicago, but the City then
2 No. 15-2496
non-suited its case against her. The district court denied
Simic’s motion for an injunction, and Simic has appealed.
We affirm the district court’s denial of Simic’s motion for a
preliminary injunction for two reasons. Simic did not face any
threat of irreparable harm. Also, without assessing her likeli-
hood of success on the merits of her constitutional arguments,
it appears that Simic lacks Article III standing for the relief she
seeks. Once our mandate issues, the district court should con-
sider dismissing Simic’s lawsuit for lack of jurisdiction.
I. Factual and Procedural Background
A 2005 Chicago ordinance prohibits drivers from using
handheld mobile telephones while operating their vehicles.
Chic. Mun. Code § 9-76-230. On November 7, 2014 a Chicago
police officer ticketed Simic for violating the ordinance. The
ticket directed Simic to appear for a hearing or to pay a $100
fine by mail. Simic did neither. The Chicago Department of
Administrative Hearings entered a default judgment against
her for $540. As the ticket had warned, $500 was the maxi-
mum fine for Simic’s infraction and $40 was for administrative
costs.
Simic did not dispute that she was texting while driving;
instead she challenged the constitutionality of the Chicago or-
dinance. She sued the City on January 3, 2015, seeking declar-
atory and injunctive relief and monetary damages in excess of
one million dollars. She alleged that Chicago’s cell phone or-
dinance violates the Fourteenth Amendment’s Due Process
Clause and the Eighth Amendment’s Excessive Fines Clause.
She also alleged several state-law claims and sought certifica-
tion of a plaintiff class.
No. 15-2496 3
Simic’s main theory is that the ordinance somehow vio-
lates the United States Constitution because it exceeds the
powers the State of Illinois has granted to the City of Chicago.
Illinois prevents municipalities from creating ordinances re-
garding certain traffic offenses, such as those offenses in the
Illinois Vehicle Code. See 65 ILCS 5/1-2.1-2. The Illinois Vehi-
cle Code contains a prohibition on cell phone use while driv-
ing. 625 ILCS 5/12-610.2 (prohibiting a person from operating
“a motor vehicle on a roadway while using an electronic com-
munication device”). Simic argues that Chicago’s cell phone
ordinance is preempted by the Illinois statute. See Catom
Trucking, Inc. v. Chicago, 952 N.E.2d 170, 175–76 (Ill. App. 2011)
(holding city could not enforce through administrative adju-
dication a city ordinance limiting vehicle weight). The Illinois
statute on cell phone use while driving caps the amount a
driver may be fined: “A person who violates this Section shall
be fined a maximum of $75 for a first offense, $100 for a sec-
ond offense, $125 for a third offense, and $150 for a fourth or
subsequent offense.” Id.How such an issue of state law presents a federal constitu-
tional issue remains something of a mystery. Simic’s theory
seems to be that Chicago’s fines are both “excessive and dis-
proportionate to the gravity of the offense” and imposed
without authority under state law, from which she concludes
that the city’s fines violate the Excessive Fines Clause of the
Eighth Amendment and the Due Process Clause of the Four-
teenth Amendment. As explained below, however, Simic’s
case runs into trouble at the preliminary level of standing.
On January 23, 2015, after Simic filed her motion for a pre-
liminary injunction, the Department granted Simic’s motion
4 No. 15-2496
to set aside the default judgment in her state case and contin-
ued her case until March 11, 2015. On May 18, after several
agreed continuances, the city non-suited the administrative
proceeding. Simic never paid any money for violating the
Chicago ordinance, and she is no longer liable for the fine.
On June 24, 2015, the district court denied Simic’s motion
for a preliminary injunction because she failed to show a
threat of irreparable injury and because her prospects for suc-
cess on the merits were “doubtful.” There was no threat of ir-
reparable harm because “the very nature of Simic’s claim that
the $500 fine is excessive necessarily means that her com-
plaints can be remedied by monetary damages, and thus,
there exists an adequate remedy at law.” Simic was unlikely
to prevail on the merits, the court said, because Chicago is a
home rule unit of government so that state law does not
preempt the ordinance. Simic appealed the denial of an in-
junction.
II. Analysis
We have jurisdiction under 28 U.S.C. § 1292(a)(1) to review
the district court’s denial of a preliminary injunction. We af-
firm the denial. The district court correctly found that Simic
failed to show any threat of irreparable harm, and we agree
with the court’s explanation. At worst, Simic faced the threat
of a $540 assessment as a fine and court costs, so a damages
remedy would be sufficient to remedy any harm. In addition,
without delving further into the merits of her constitutional
claim, it is apparent that Simic lacks standing to assert her fed-
eral claims, meaning that subject matter jurisdiction is lack-
ing. A district court has jurisdiction to decide its jurisdiction,
so it can address a motion for a preliminary injunction with-
out making a conclusive decision about whether it has subject
No. 15-2496 5
matter jurisdiction. Yet issues of subject matter jurisdiction are
always on the table in federal courts, including appeals from
grants or denials of preliminary injunctions. See Munaf v.
Green, 553 U.S. 674, 691 (2008). Simic does not have standing
to seek injunctive relief, and she seems unable to show any
injury in fact to support her claim for damages.
A. Standing to Seek Injunctive Relief
To invoke federal jurisdiction, Simic must have standing,
which is a short-hand term for the right to seek judicial relief
for an alleged injury. See Susan B. Anthony List v. Driehaus, 573
U.S. —, —, 134 S. Ct. 2334, 2341 (2014). To have standing, a
plaintiff must allege and ultimately show: (1) an injury in fact,
(2) a sufficient causal connection between the injury and the
conduct complained of, and (3) a likelihood that the injury
will be redressed by a favorable decision. Id. A plaintiff bears
the burden of showing that she has standing for each form of
relief sought. Friends of the Earth, Inc. v. Laidlaw Environmental
Services (TOC), Inc., 528 U.S. 167, 185 (2000). For Simic’s case
to survive, she must show that she has standing to seek either
injunctive relief or damages, or both.
To have standing for prospective injunctive relief, a plain-
tiff must face a “real and immediate” threat of future injury
as opposed to a threat that is merely “conjectural or hypothet-
ical.” City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (inter-
nal quotation marks omitted); see also Robinson v. Chicago, 223
F.3d 440, 444–45 (7th Cir. 2000). Unlike with damages, a past
injury alone is insufficient to establish standing for purposes
of prospective injunctive relief: “Past exposure to illegal con-
duct does not in itself show a present case or controversy re-
6 No. 15-2496
garding injunctive relief … if unaccompanied by any contin-
uing, present adverse effects.” Lyons, 461 U.S. at 95–96, citing
O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974).
Simic’s claimed threat of future injury is conjectural. The
threat is contingent upon her once again driving while using
her cell phone and receiving a citation under the Chicago or-
dinance. This hypothetical scenario would also require her to
violate a separate law that she does not challenge—the Illinois
statute that prohibits using cell phones while driving. 625
ILCS 5/12-610.2.
For purposes of standing to seek injunctive relief against
future harm, courts generally assume that litigants “will con-
duct their activities within the law and so avoid prosecution
and conviction.” O’Shea, 414 U.S. at 497. That assumption
surely holds with respect to obeying laws that are not them-
selves the target of a party’s constitutional challenge, as was
the case in O’Shea and is the case here.
We hope, and in any event we must assume, that Simic
does not have concrete plans to violate Illinois law by using
her cell phone while driving in Chicago. That fact undermines
her standing to seek injunctive relief. “General assertions or
inferences that in the course of their activities respondents
will be prosecuted for violating valid criminal laws” cannot
form the basis for allegations of real and immediate future in-
jury sufficient to confer standing. O’Shea, 414 U.S. at 497; see
also Lyons, 461 U.S. at 109–10 (plaintiff lacked standing to seek
injunction against future police use of chokehold; he could
only speculate that he would be subjected to illegal chokehold
again in course of possible future confrontation with police).
No. 15-2496 7
If Simic were claiming a constitutional right to drive while
using her cell phone, our standing analysis would be differ-
ent, although it is difficult to imagine how such a claim would
succeed on the merits. A person is not necessarily required to
risk prosecution in order to challenge a law’s validity. See, e.g.,
Holder v. Humanitarian Law Project, 561 U.S. 1, 15 (2010); Amer-
ican Civil Liberties Union v. Alvarez, 679 F.3d 583, 590–91 (7th
Cir. 2012). But Simic makes no such claim here. Any future
injury would require her to violate an Illinois statute of un-
questioned validity.
B. Standing to Seek Damages
Simic also seems to have no viable claim for damages be-
cause she has alleged no injury. Simic won in the state pro-
ceedings. The default judgment was set aside and the city
later dismissed the case. Simic paid no fine. Her due process
rights could not have been violated by merely issuing the ci-
tation that called upon her to defend herself. The citation gave
her the very notice and opportunity to be heard that are the
essence of due process of law.
There are some exceptions to this injury analysis in ex-
treme situations, such as where a government official har-
asses a particular person by repeatedly bringing charges and
then dismissing them or a government official acts without a
colorable legal basis. See, e.g., Geinosky v. Chicago, 675 F.3d 743(7th Cir. 2012) (pattern of harassing parking tickets issued
against plaintiff). There is no claim of such repeated harass-
ment in this case, and the ticket was issued under a facially
valid ordinance.
Simic alleged that the ordinance’s fine violated the Eighth
Amendment’s Excessive Fines Clause and the Fourteenth
8 No. 15-2496
Amendment’s Due Process Clause. Whether the Eighth
Amendment’s Excessive Fines Clause even applies to state
and local governments is an open question. See McDonald v.
Chicago, 561 U.S. 742, 765 n.13 (2010) (noting question is open).
If it does apply, the Excessive Fines Clause “limits the govern-
ment’s power to extract payments, whether in cash or in kind,
as punishment for some offense.” United States v. Bajakajian,
524 U.S. 321, 328 (1998) (citation and internal quotation marks
omitted). But in this case Chicago has not extracted any pay-
ment from plaintiff and no longer seeks to do so. Simic’s Four-
teenth Amendment due process claim requires a deprivation
of property, Kerry v. Din, 576 U.S. —, —, 135 S. Ct. 2128, 2132
(2015), but she has not been deprived of any property. She did
not pay any money to Chicago and she is no longer liable for
this ticket. On her Eighth or Fourteenth Amendment claims,
there is no injury for a federal court to redress with damages.
The fact that Simic litigated her ticket in the Chicago ad-
ministrative court does not provide a redressable injury. Hav-
ing to defend oneself in a legal proceeding ordinarily does not
give rise to a redressable injury. For example, undergoing trial
in a criminal prosecution does not give rise to a due process
violation. See Alexander v. McKinney, 692 F.3d 553, 557 n.2 (7th
Cir. 2012) (“It would be anomalous to hold that attending a
trial deprives a criminal defendant of liberty without due pro-
cess of law, when the purpose of the trial is to effectuate due
process.”). Whether being prosecuted and tried without prob-
able cause gives rise to a federal constitutional claim is a con-
troversial issue, as shown by the multiple opinions in Albright
v. Oliver, 510 U.S. 266 (1994). Simic has no arguable claim
along even those lines, however, since the citation was issued
No. 15-2496 9
and the fine initially assessed on the basis of undisputed prob-
able cause to believe she violated a facially valid city ordi-
nance.
For essentially the same reasons, Simic’s claim for declar-
atory relief does not provide a case or controversy. In deter-
mining whether a claim for declaratory relief presents a case
or controversy under Article III of the Constitution, “basically,
the question in each case is whether the facts alleged, under
all the circumstances, show that there is a substantial contro-
versy, between parties having adverse legal interests, of suffi-
cient immediacy and reality to warrant the issuance of a de-
claratory judgment.” Preiser v. Newkirk, 422 U.S. 395 (1975) (ci-
tation and internal quotation marks omitted; emphasis omit-
ted); see also Alvarez v. Smith, 558 U.S. 87, 93 (2009) (claim for
declaratory and injunctive relief moot because it was “an ab-
stract dispute about the law, unlikely to affect these plaintiffs
any more than it affects other Illinois citizens”).
Simic’s lack of standing to seek injunctive relief also means
that she may not seek that relief on behalf of the putative class
she alleged in her complaint. O’Shea, 414 U.S. at 494. Similarly,
Simic may not seek damages or declaratory relief on behalf of
a not-yet-certified class. Board of School Comm’rs of City of Indi-
anapolis v. Jacobs, 420 U.S. 128, 129–30 (1975) (per curiam).
We AFFIRM the denial of a preliminary injunction. Con-
sistent with this opinion, the district court should consider
dismissing Simic’s suit for lack of subject matter jurisdiction.