Kooperman v. The City of Chicago , 2019 IL App (1st) 171056 ( 2019 )

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Appellate Court Date: 2019.07.15
08:09:44 -05'00'
Kooperman v. City of Chicago, 2019 IL App (1st) 171056
Appellate Court TODD KOOPERMAN, Plaintiff-Appellant, v. THE CITY OF
Caption CHICAGO, THE CITY OF CHICAGO DEPARTMENT OF
ADMINISTRATIVE HEARINGS, and THE CITY OF CHICAGO
DEPARTMENT OF FINANCE, Defendants-Appellees.
District & No. First District, First Division
Docket No. 1-17-1056
Filed March 11, 2019
Decision Under Appeal from the Circuit Court of Cook County, No. 16-M1-625851;
Review the Hon. Sophia H. Hall, Judge, presiding.
Judgment Circuit court affirmed in part and reversed in part.
Department decision reversed; cause remanded.
Counsel on Mark G. Weinberg and Adele D. Nicholas, both of Chicago, for
Appeal appellant.
Edward N. Siskel, Corporation Counsel, of Chicago (Benna Ruth
Solomon, Myriam Zreczny Kasper, and Kerrie Maloney Laytin,
Assistant Corporation Counsel, of counsel), for appellees.
Panel JUSTICE WALKER delivered the judgment of the court, with
opinion.
Presiding Justice Mikva and Justice Griffin concurred in the judgment
and opinion.
OPINION
¶1 Todd Kooperman contested a ticket he received for leaving his car parked on the street
when the City of Chicago (City) sought to clean the street. The City’s Department of
Administrative Hearings (Department) held that because the City posted a sign for street
cleaning before issuing the ticket, Kooperman violated the street cleaning ordinance.
Kooperman sought administrative review and added a count challenging the ordinance as
unconstitutional. We hold that the street cleaning ordinance shall be read to require the City to
post signs far enough in advance of ticketing to give reasonable notice to persons who try to
comply with the ordinance. We reverse the Department’s ruling and remand for further
proceedings in accord with this opinion.
¶2 I. BACKGROUND
¶3 When Kooperman parked his car on the 2500 block of North Spaulding Street, no sign
indicated any restriction on his right to park as he did. He checked the street for parking
restrictions again around 6 p.m. on July 25, 2016, and saw no signs. At 10 a.m. the following
morning, a police officer issued a ticket informing Kooperman that he violated the street
cleaning ordinance by leaving his car parked where he left it.
¶4 Kooperman contested the ticket. At the administrative hearing, Kooperman complained
that the City did not give him adequate notice that he would violate an ordinance by leaving his
car parked in the spot where he parked it legally. The administrative law judge said, “so long as
the sign is posted on the day of the violation, the City has met its requirements.” Kooperman
did not contest the City’s claim that it posted a sign on July 26, 2016, the day it issued the
ticket. Kooperman paid the $60 fine under protest and filed a complaint for administrative
review. He added to the complaint a count asking for a judgment declaring the street cleaning
ordinance unconstitutional because the ordinance failed to give adequate guidance and
adequate notice to persons who sought to obey the law.
¶5 The circuit court held that the evidence supported the Department’s decision. The circuit
court granted the City’s motion to dismiss count II under section 2-615 of the Code of Civil
Procedure (735 ILCS 5/2-615 (West 2016)), finding that Kooperman waived the constitutional
issue by failing to raise it in the administrative proceeding. Kooperman now appeals.
¶6 II. ANALYSIS
¶7 A. Standard of Review
¶8 For the administrative review count, we review the Department’s decision, not the circuit
court’s ruling. Ahmad v. Board of Education of the City of Chicago, 365 Ill. App. 3d 155, 162
(2006). We review the circuit court’s dismissal of count II de novo. Marshall v. Burger King
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Corp., 222 Ill. 2d 422, 429 (2006).
¶9 B. Administrative Review
¶ 10 “[T]he parties to this appeal do not present any factual disputes; only the legal issues are in
controversy. Consequently, we are not bound by the administrative agency’s conclusions of
law or statutory construction and we will review those decisions de novo.” Rockwood Holding
Co. v. Department of Revenue, 312 Ill. App. 3d 1120, 1123 (2000).
¶ 11 The street cleaning ordinance provides:
“(a) For the purpose of facilitating street cleaning, the commissioner of streets and
sanitation is authorized to post temporary signs *** designating the day or days of the
week and hours of the day and the part of the street or streets in which the parking of
vehicles is prohibited because of such street cleaning ***.
(b) It shall be a violation of this section, and shall subject the violator to the fine set
forth in Section 9-100-020, to park any vehicle on any street in violation of a sign
posted, erected or maintained pursuant to this section.” Chicago Municipal Code
§ 9-64-040 (added July 12, 1990).
¶ 12 Because the ordinance does not specify any length of time the City must leave the sign
posted before starting to ticket violators, the Department found that the ordinance did not
require any prior notice of the parking restriction to persons who parked legally. That is, under
the Department’s interpretation, a driver could park legally in an available space, and if the
City posted a sign for street cleaning 10 minutes later, the City could immediately issue a ticket
fining the driver $60 for violating the ordinance, when the driver had no reasonable means of
discovering that leaving his car parked for 10 minutes would violate the ordinance.
¶ 13 Kooperman did nothing with his car after he parked it legally. The United States Supreme
Court addressed constitutional requirements for penalizing a failure to act in Lambert v.
California, 355 U.S. 225, 228 (1957), where the Court said:
“[W]e deal here with conduct that is wholly passive—mere failure to register. It is
unlike the commission of acts, or the failure to act under circumstances that should alert
the doer to the consequences of his deed. *** Engrained in our concept of due process
is the requirement of notice. Notice is sometimes essential so that the citizen has the
chance to defend charges. Notice is required before property interests are disturbed,
before assessments are made, before penalties are assessed. Notice is required in a
myriad of situations where a penalty or forfeiture might be suffered for mere failure to
act. Recent cases illustrating the point are Mullane v. Central Hanover Trust Co., [339
U.S. 306 (1950)]; Covey v. Town of Somers, [351 U.S. 141 (1956)]; Walker v.
Hutchinson City, [352 U.S. 112 (1956)]. These cases involved only property interests
in civil litigation.”
¶ 14 Later, the Supreme Court added:
“[B]ecause we assume that man is free to steer between lawful and unlawful conduct,
we insist that laws give the person of ordinary intelligence a reasonable opportunity to
know what is prohibited, so that he may act accordingly. Vague laws may trap the
innocent by not providing fair warning.” Grayned v. City of Rockford, 408 U.S. 104,
108 (1972).
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¶ 15 The Department interpreted the ordinance as providing no requirement of notice, giving
the City “unbridled discretion” (Gillam v. Landrieu, 455 F. Supp. 1030, 1038 (E.D. La. 1978))
to impose fines for leaving a car parked in a space where the driver legally parked his car. The
administrative law judge’s interpretation raises doubts as to whether the ordinance provides
constitutionally required notice that the passive conduct of leaving the car parked will violate
the ordinance.
¶ 16 A statute should be interpreted to promote its essential purposes and to avoid, if possible, a
construction that would raise doubts about its validity. “Statutes are presumed constitutional,
and courts have a duty to construe enactments by the General Assembly so as to uphold their
validity if there is any reasonable way to do so.” Wade v. City of North Chicago Police Pension
Board, 226 Ill. 2d 485, 510 (2007). Courts have “the authority to insert into a statute language
omitted through legislative oversight.” People v. Shephard, 152 Ill. 2d 489, 498 (1992).
¶ 17 The City of Englewood, Colorado, adopted an ordinance that read:
“It shall be unlawful for any person to resist any police officer, any member of the
police department, or any person duly empowered with police authority, while in the
discharge or apparent discharge of his duty, or in any way to interfere with or hinder
him in the discharge of his duty.” (Emphasis omitted.) City of Englewood v. Hammes,
671 P.2d 947, 948 n.1 (Colo. 1983) (en banc).
¶ 18 The Wisconsin Supreme Court interpreted a statute regarding temporary restraining orders
in Bachowski v. Salamone, 407 N.W.2d 533 (Wisc. 1987). The court said:
“We acknowledge that no minimum notice period is specified in the statute but we
must interpret the statute to avoid constitutional invalidity. [Citation.] Because an
alternative construction would render the statute unconstitutional, we construe notice
to mean ‘reasonable notice,’ which is all that is required by due process. [Citation.] The
notice must be ‘reasonably calculated to inform the person of the pending proceeding
and to afford him or her an opportunity to object and defend his or her rights.’ ”
Bachowski, 407 N.W.2d at 536 (quoting In re Estate of Fessler, 302 N.W.2d 414, 419
(1981)).
See also Kansas City, Kansas Fraternal Order of Police, Lodge No. 4 v. City of Kansas City,
Kansas, 620 F. Supp. 752, 757-59 (D. Kan. 1984) (construing ordinance to implicitly
incorporate provisions for due process); State v. Hunter, 9 P.3d 872, 878 (Wash. App. 2000)
(finding implicit limitation on fines so that statute “meets constitutional requirements”).
¶ 19 To avoid doubts about the constitutionality of the ordinance, we must interpret the
ordinance to require reasonable notice to drivers who parked their cars legally prior to the
posting of signs that restrict parking. The signs must remain plainly visible along the street for
a length of time “reasonably calculated to inform” drivers that they will violate the ordinance if
they leave their cars parked after a specified hour on a specified day. We hold that putting up
signs less than 16 hours before ticketing does not provide reasonable notice.
¶ 20 We find that the ordinance shall be read to require at least 24 hours’ notice through the
posting of signs. The street clearing ordinance as a whole clearly contemplates that drivers will
be provided with reasonable notice. The ordinance provides that it is a defense to a parking
ticket “that the relevant signs prohibiting or restricting parking or standing were missing or
obscured.” Chicago Municipal Code § 9-100-060(a)(3) (amended Nov. 21, 2007). This
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defense is clearly based on lack of notice. The ordinance also reflects the City’s understanding
about what would be reasonable.
¶ 21 Section 9-64-040(d) of the ordinance provides “[n]o towing or storage fees shall be
assessed in those instances in which a vehicle is towed to an authorized facility pursuant to this
section, unless the sign posted or erected pursuant to subsection (a) of this section has been in
place for 24 hours.” Chicago Municipal Code § 9-64-040(d) (amended Nov. 13, 2007). While
section 9-64-040(a) does not provide a period of time for which signs must be posted before
the City can begin ticketing for the purpose of street cleaning, to ensue fundamental due
process, we construe the ordinance as requiring this same notice before cars are ticketed. The
City admits that it schedules the cleaning of each street months in advance. Thus, the City
would not incur any undue burden from posting the signs 24 hours prior to ticketing. We hold
that the ordinance shall be read to require that a sign must be posted for at least 24 hours before
the City can start ticketing for the purpose of street cleaning. Accordingly, we reverse the
agency’s decision and remand to the Department for proceedings in accord with this opinion.
¶ 22 III. CONCLUSION
¶ 23 The administrative law judge misconstrued the street cleaning ordinance in a way that
raises serious questions as to the ordinance’s constitutionality. We hold that the ordinance
incorporates a requirement that the City must post signs about impending street cleaning far
enough in advance that persons who parked their cars legally on the street get reasonable notice
that they must move their cars by a specified hour on a specified day. We find that the signs
posted less than 16 hours before ticketing did not provide the requisite reasonable notice. We
hold that the ordinance shall be read to require that a sign must be in place for at least 24 hours
before the City can start ticketing for the purpose of street cleaning. Accordingly, we reverse
the circuit court’s decision, affirming the administrative law judge’s ruling, and remand for
further proceedings. We find that the ordinance is constitutional with reasonable notice, and
therefore, we affirm the dismissal of count II of Kooperman’s complaint.
¶ 24 Circuit court affirmed in part and reversed in part.
¶ 25 Department decision reversed; cause remanded.
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