This featured column discusses the Third District Appellate Court decision in Kennedy v. City of Chicago, 2022 IL App (1st) 210492, affirming the trial court’s finding that the City of Chicago red light violation notice properly complied with Municipal and State Codes and was enforceable.
Red Light and Speed Camera Statutory Authority
Since their inception, red light and speed cameras have been controversial topics in Illinois. Such devices and the resulting violations issued have been challenged for various reasons including the argument that they are unconstitutional. Under the Illinois Vehicle Code, municipalities may enforce red light and speed violations through the use of automated camera systems.
Red light cameras are addressed under 625 ILCS 5/11-208.6, which provides that automated traffic law enforcement systems consist of any device with one or more motor vehicle sensors working in conjunction with a red light signal to produce recorded images of motor vehicles entering an intersection against a red signal indication in violation of Section 11-306 of the Code or a similar provision of a local ordinance. 625 ILCS 5/11-208.6.
Speed cameras are addressed under 625 ILCS 5/11-208.8, which provides that automated speed enforcement systems consist of a photographic device, radar device, laser device, or other electrical or mechanical device or devices installed or utilized in a safety zone and designed to record the speed of a vehicle and obtain a clear photograph or other recorded image of the vehicle and the vehicle's registration plate or digital registration plate while the driver is violating Article VI of Chapter 11 of the Code or a similar provision of a local ordinance. The statute defines a “safety zone” as:
“an area that is within one-eighth of a mile from the nearest property line of any public or private elementary or secondary school, or from the nearest property line of any facility, area, or land owned by a school district that is used for educational purposes approved by the Illinois State Board of Education, not including school district headquarters or administrative buildings. A safety zone also includes an area that is within one-eighth of a mile from the nearest property line of any facility, area, or land owned by a park district used for recreational purposes. However, if any portion of a roadway is within either one-eighth mile radius, the safety zone also shall include the roadway extended to the furthest portion of the next furthest intersection.” 625 ILCS 5/11-208.8.
Both statutes require that the recorded image display the time, date and location of the violation. Recorded images may consist of two or more photographs, microphotographs, electronic images or a video recording showing the motor vehicle and, on at least one image or portion of the recording, clearly identifying the registration plate or digital registration plate number of the motor vehicle. Any municipality or county providing a recorded image of the violation must make the recording available online. 625 ILCS 5/11-208.6-208.8.
Red Light Violation Notice Provision
The notice provision varies slightly between a red light violation under 208.6 and a speed violation under 208.8. As the subject of this case called into question the notice provision of a red light violation, we will focus on the requirements under 208.6 which provide that the notice shall include:
(1) the name and address of the registered owner of the vehicle;
(2) the registration number of the motor vehicle involved in the violation;
(3) the violation charged;
(4) the location where the violation occurred;
(5) the date and time of the violation;
(6) a copy of the recorded images;
(7) the amount of the civil penalty imposed and the requirements of any traffic education program imposed and the date by which the civil penalty should be paid and the traffic education program should be completed;
(8) a statement that recorded images are evidence of a violation of a red light signal;
(9) a warning that failure to pay the civil penalty, to complete a required traffic education program, or to contest liability in a timely manner is an admission of liability;
(10) a statement that the person may elect to proceed by:
(A) paying the fine, completing a required traffic education program, or both; or
(B) challenging the charge in court, by mail, or by administrative hearing; and
(11) a website address, accessible through then Internet, where the person may view the recorded images of the violation. 625 ILCS 5/11-208.6.
Plaintiffs filed a class action lawsuit against the City of Chicago alleging that the notice of the violations was “void ab initio”, having no legal effect for failure to properly comply with the notice provision. Kennedy, 2022 IL App (1st) 210492.
Pursuant to the Illinois Vehicle Code, the City of Chicago enacted its red light camera program under Chicago Municipal Code § 9-102-020(a). The Chicago municipal Code mirrors the notice requirements provided by the Illinois Vehicle Code under 11-208.6.
Plaintiffs contend that the City’s notice fails to comply with requirements No. 8 and No. 9 under 208.6 and the Municipal Code:
“(8) a statement that recorded images are evidence of a violation and (9) a warning that failure to pay the civil penalty *** or to contest liability in a timely manner is an admission of liability and may result in a suspension of the driving privileges of the registered owner of the vehicle, respectively. See id. § 11-208.6(d)(8), (9).
While the City’s notice did not contain the exact phrases as worded in No. 8 and No. 9, it did contain similar statements regarding the failure to respond. Kennedy, 2022 IL App (1st) 210492. The City notice states:
“[D]o not ignore this notice. If you fail to respond, the City of Chicago will conclude that this billing is correct and take further enforcement action. If you fail to pay or contest this violation a determination will be entered against you. If the fine is not paid within 25 days of a determination, a penalty will be assessed in an amount up to the fine amount and the determination will be final. Failure to timely pay *** may subject you to further enforcement including vehicle immobilization.
However, when compared to section 208.6 of the Vehicle Code, the notice omits the words “evidence” or “admission of liability”. Among other arguments, the City argued in its motion to dismiss that the notice substantially complied with the Vehicle and Municipal Codes and the provisions were simply directory, not mandatory. The circuit court granted the City’s motion to dismiss finding that the City “substantially complied” with the requirements under the Vehicle and Municipal Codes. However, the court noted that the use of the word “shall” in the Codes suggested that the required information was, in fact, mandatory, not just directory. Nonetheless, the notice satisfied the general notification requirements of the provisions and plaintiffs failed to allege that they were in any way prejudiced by the lack of the City’s strict compliance with the provisions.
No Prejudice Due to Lack of Strict Compliance
Noting that the circuit court did not go far enough in its analysis that “shall” is generally a mandatory obligation, the Appellate Court discussed in length whether the Code is mandatory or directory. The Appellate Court discussed the Illinois Supreme Court case of People v. Robinson, 217 Ill. 2d 43 (2005), which clarified two legal doctrines:
1) The mandatory-permissive dichotomy—which is not implicated here — refers to whether a particular function of a governmental official is required or optional;
2) (T)he mandatory-directory dichotomy—which is at issue here — denotes whether the failure to comply with a particular procedural step will or will not have the effect of invalidating the governmental action to which the procedural requirement relates. Id. (quoting Morris v. County of Marin, 18 Cal. 3d 901, 908 (1977)).
The Appellate Court further clarified that while the word “shall” typically denotes a mandatory obligation under the mandatory-permissive dichotomy, such is not the case with the mandatory-directory dichotomy. Kennedy, 2022 IL App (1st) 210492 (citing Robinson, 217 Ill. 2d at 54).
There is a presumption that procedural demands to government officials are directory. People v. Geiler, 2016 IL 119095. Such a presumption is only overcome when (1) there is negative language in the statute specifying a consequence of noncompliance or (2) the right the provision is designed to protect would be generally injured if the statute were directory. Lakewood Nursing & Rehabilitation Center, LLC v. Department of Public Health, 2019 IL 124019. Applying this test, the Appellate Court found it was clear that this presumption was not overcome. Kennedy, 2022 IL App (1st) 210492. For one, the Illinois Vehicle Code does not provide any negative consequences for the City’s failure to comply. Second, the plaintiffs cannot show that prejudice would generally occur due to the City’s lack of compliance. In this case, the plaintiffs fail to allege any prejudice due to the City’s lack of strict compliance with the notice provisions.
Conclusion
The purpose of the City’s notice is to let the accused know of the charges and the options that the accused has to resolve the matter. In the Appellate Court’s opinion, the City substantially complied with the Code, fulfilling this purpose. Despite plaintiffs’ allegations to the contrary, the court held that a reasonable recipient of such a notice would understand that the included photograph(s) of the violation would be used as evidence against the accused in court or a hearing. Additionally, a reasonable person would understand the negative consequences of ignoring the notice as it states that such a failure to pay or contest the violation means that “a determination will be entered against you” and “may subject you to further enforcement.” As a final point in affirming the circuit court’s dismissal of the complaint, the Appellate Court pointed out that even if prejudice might occur in some hypothetical situations, that is still insufficient to establish prejudice due to the City’s lack of strict compliance in this specific case.
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