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02/19/97 EVELYN HUNT v. RICHARD M. DALEY

February 19, 1997

EVELYN HUNT, SPECIAL ADMINISTRATOR OF THE ESTATE OF JOHNIE HUNT, PLAINTIFF-APPELLEE,
v.
RICHARD M. DALEY, MAYOR; CITY OF CHICAGO DEPARTMENT OF POLICE; CITY OF CHICAGO MAYOR'S LICENSE COMMISSION; WINSTON L. MARDIS, DIRECTOR, MAYOR'S LICENSE COMMISSION, DEFENDANTS-APPELLANTS.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE ELLIS REID, JUDGE PRESIDING. This Opinion Substituted on Denial of Rehearing for Withdrawn Opinion of December 30, 1996, Previously

Released for Publication March 31, 1997.

The Honorable Justice Gordon delivered the opinion of the court. Cousins, Jr., P.j., and Hourihane, J., concur.

The opinion of the court was delivered by: Gordon

JUSTICE GORDON delivered the opinion of the court:

This proceeding involves the 1982 Chicago Weapons Ordinance, passed by the Chicago City Council on March 19, 1982 (see Chicago Municipal Code § 11.1 et seq. (1982), now amended and recodified at Chicago Municipal Code § 8-20-010 et seq. (1990) (set forth in pertinent part in our Discussion, below)), rendering certain firearms unregisterable in the City of Chicago. Under that ordinance, several categories of firearms, including handguns, became unregisterable in the City of Chicago. See Chicago Municipal Code § 11.1-3 (1982) (now Chicago Municipal Code § 8-20-050 (1990)). However, pursuant to a grandfathering provision provided in the 1982 ordinance, handgun owners whose handguns were validly registered prior to the effective date of the handgun ban could continue to re-register their handguns. See Chicago Municipal Code § 11.1-3(c)(1) (1982) (now Chicago Municipal Code § 8-20-050(c)(1) (1990)). The 1982 ordinance also required that such re-registration take place every two years. See Chicago Municipal Code § 11.1-18 (1982) (amended and recodified in 1994 to require annual re-registration (see Chicago Municipal Code § 8-20-200(a) (1994))). The failure to re-register firearms every two years after the enactment of the 1982 ordinance rendered such firearms permanently unregisterable, and thereby caused handgun owners to forfeit their right to possess such firearms within the City of Chicago. See Chicago Municipal Code § 11.1-18 (1982) (now Chicago Municipal Code § 8-20-200(c) (1990)). *fn1

In September 1993, the plaintiff's decedent, Johnie Hunt, (hereinafter Hunt), filed applications with the Gun Registration Section of the Chicago Police Department to re-register his three handguns. The Police Department denied Hunt's applications on the ground that he had failed to renew his previous firearm registrations upon their expiration every two years, in violation of section 8-20-200(a) of the Chicago Weapons Ordinance (Chicago Municipal Code § 8-20-200(a) (1990)). Hunt appealed that decision to the Mayor's License Commission of the City of Chicago, which also denied re-registration based upon section 8-20-200(a). Hunt then filed a complaint for administrative review of those orders in the Circuit Court of Cook County against defendants Richard M. Daley, Mayor of the City of Chicago; the Chicago Police Department; and against the Mayor's License Commission and its director, Winston L. Mardis. The circuit court reversed defendants' denial of Hunt's applications to re-register, on the grounds that section 8-20-200(c) of the Weapons Ordinance is unconstitutional. Defendants appeal from that order.

The underlying facts are undisputed. As established in his testimony before the Mayor's License Commission, at the time of the enactment of the 1982 weapons ordinance, Hunt owned three handguns which were validly registered. He kept his handguns at home to protect himself and his wife. Up to 1987, Hunt properly re-registered his handguns every two years, as required under the applicable provisions of the 1982 ordinance. On each re-registration application, there was a notice to handgun owners that all firearms registration certificates would expire two years after the date of their issuance, at which time all subject weapons would have to be re-registered. Although there is some dispute as to whether he re-registered his handguns in 1989, the parties agree that after 1989, Hunt did not re-register his handguns again until four years later, when he submitted the September 14, 1993 re-registration applications at issue here. Hunt also testified at the administrative hearing, over the objection of the City of Chicago, that he had been hospitalized repeatedly between 1986 and 1993 for treatment of diabetes, hypertension, prostatitis, and for the amputation of his leg and surgery on his spine.

The Mayor's License Commission rejected Hunt's September 1993 re-registration application. In his complaint for administrative review before the circuit court, Hunt urged as he had before the Mayor's License Commission that the denial of his re-registration applications was an abuse of discretion, was against the manifest weight of the evidence, and was arbitrary and capricious. Hunt then filed a motion for summary judgment, in which for the first time he argued that the denial of his re-registration was unconstitutional. The circuit court denied that motion, stating that summary adjudication was an improper means of disposition on administrative review. The circuit court then proceeded to hearing, pursuant to which it reversed the decision of the Mayor's License Commission on constitutional grounds, to allow Hunt to re-register his handguns, stating as follows:

"With the inclusion of the grandfather clause, the handgun ordinance is essentially a compromise position between the interests of the City in eliminating dangerous weapons from the street and the reliance interests and vested property rights of Mr. Hunt. *** By declaring that Mr. Hunt may not renew the registration in spite of his legislatively mandated grandfathered status, simply because he failed to renew his registration within two years of a previous registration, *** the City of Chicago [has attempted] to achieve retroactive application of a prospective ordinance. As such, the actions of the City of Chicago in the case at bar serve no legitimate government function *** [because they] attempt to give with one hand and take away with the other."

Defendants appeal from that order.

ARGUMENT(S)

On appeal, defendants first contend that the circuit court erred in considering the constitutionality of the re-registration requirement, first raised before it, because the issue was waived insofar as Hunt failed to raise the issue before the Mayor's License Commission. Defendants further contend that even absent waiver, the circuit court was incorrect in finding section 8-20-200(c) of the Weapons Ordinance unconstitutional. We reverse for the reasons which follow.

We first address the waiver issue. At the outset, we note that the parties agree that, as is the case with administrative agencies generally, the Mayor's License Commission did not have the power to invalidate a statute in the first instance because of any substantive due process violation. See generally 2 Am. Jur. 2d Administrative Law § 77, at 99 (1994) ("it is axiomatic that an administrative agency has no power to declare a statute void or otherwise unenforceable."). See also Yellow Cab Co. v. City of Chicago, 938 F. Supp. 500 (N.D. Ill. 1996) (administrative agencies lack power to determine the constitutionality of legislation which they must enforce); Palm Harbor Special Fire Control District v. Kelly, 516 So. 2d 249 (Fla. 1987) (administrative agency has no power to declare a statute void or unenforceable). Consequently, plaintiff urges that since the Mayor's License Commission could not resolve the issue, there was no reason to raise it there. Defendant, however, responds that notwithstanding that inability to rule on the issue, the issue must be raised during the administrative hearing if for no other reason than that of creating a record that will better enable the reviewing court to address the issue on review.

There appears to be some support for defendants position in that regard. Cf. Caauwe v. Police Pension Board, 216 Ill. App. 3d 313, 576 N.E.2d 1078, 160 Ill. Dec. 124 (1991). See also Miller v. Police Board, 38 Ill. App. 3d 894, 349 N.E.2d 544 (1976). However, we need not here resolve this question, because the rule is clear that waiver is only an admonition to litigants, not a limitation upon the jurisdiction of a reviewing court. American Federation of State, County & Municipal Employees v. County of Cook, 145 Ill. 2d 475, 584 N.E.2d 116, 164 Ill. Dec. 904 (1991); In re Marriage of Rodriguez, 131 Ill. 2d 273, 545 N.E.2d 731, 137 Ill. Dec. 78 (1989). Therefore, the circuit court, which first heard this administrative appeal, was well within the latitude of its discretion to entertain this issue, notwithstanding any waiver contentions. ...


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