The opinion of the court was delivered by: Justice Gordon
Appeal from the Circuit Court of Cook County Honorable Walter Williams, Judge Presiding. Appeal from the Circuit Court of Cook County. Honorable Walter Williams, Judge Presiding. Appeal from the Circuit Court of Cook County. Honorable Walter Williams, Judge Presiding. Appeal from the Circuit Court of Cook County. Honorable Clarence Bryant, Judge Presiding.
The respective defendants in these consolidated actions, Kenneth Jaudon, Chianthony Lee, Jeremiah Cates and Jessie Coach (collectively "defendants"), were arrested and charged in separate criminal cases with various weapons-related violations of State law and with various weapons or traffic violations of the ordinances of the City of Chicago ("City"). At the time of the defendants' respective arrests, the City seized and impounded the vehicles the defendants were driving and in which the illegal weapons were found. Impoundment notices were served at that time. Shortly thereafter, at the probable cause hearings held on the State charges, the respective Judges issued orders directing the City to release the impounded vehicles. The City moved to vacate the release orders arguing lack of notice and lack of subject matter jurisdiction. The trial courts denied or struck each motion to vacate and subsequently held the City's Law Department and the City's then Corporation Counsel, Susan Sher; Deputy Corporation Counsel, Norma Reyes; and Thomas Dumbai, Chief Assistant Corporation Counsel, individually, in contempt for refusing to return defendant Coach's car and, later, his cash bond, to him. The City appeals from the release orders pursuant to Supreme Court Rule 307(a)(1) (166 Ill. 2d R. 307(a)(1)) upon the uncontested assertions that the release orders constitute mandatory injunctions; and it appeals the contempt judgment rendered in the Coach case pursuant to Supreme Court Rule 304(b)(5) (155 Ill. 2d R. 304(b)(5)). *fn1
The issues on appeal are: (1) whether the home-rule municipal ordinance was constitutional; (2) whether the trial courts lacked authority to order release of the vehicles seized pursuant to that municipal ordinance; (3) whether the trial courts lacked subject matter jurisdiction to order release of the vehicles because there was no exhaustion of the City's administrative adjudication process; and (4) whether the civil contempt judgment was void. The City alternatively argues that, even if not void, the civil contempt judgment should be vacated because the City's refusal to comply with the court's release order was made in good faith to secure appellate review of the propriety of the release orders. Finally, the City argues, alternatively, that the portion of the fine imposed retroactively should be vacated because it was punitive in nature and was imposed without affording the contemnors certain procedural rights. For the reasons discussed below, we vacate the circuit court orders directing the City to release the impounded vehicles without payment of fines or fees and the orders refusing to vacate the release orders and we reverse the judgment of contempt. *fn2
In order to better understand the facts of this case, we first explain the impoundment ordinance that is the subject of the instant appeal. Section 8-20-015 of the Municipal Code of Chicago (the Municipal Code) (Chicago Municipal Code §8-20-015 (amended July 10, 1996)) allows for the seizure and impoundment of any motor vehicle that contains an unregistered firearm or a firearm that is not broken down in a nonfunctioning state. Subsection (a) of that provision imposes on the owner of record of the vehicle a $500 fine plus towing costs ($125) and storage fees. The only defenses or exceptions that the owner may raise are: (1) the vehicle used in the unlawful firearm violation was stolen and the theft was reported to the appropriate police authorities within 24 hours after the theft was discovered; (2) the vehicle was operating as a common carrier and the violation occurred without the knowledge of the person in control of the vehicle; or (3) the presence of the firearm was permissible pursuant to paragraphs (1) through (10) of section 8-20-010 of the Municipal Code or, in the case of an unregistered firearm, the firearm was exempt from registration under section 8-20-040 of the Municipal Code. Chicago Municipal Code §8-20-015(a) (amended July 10, 1996).
Subsection (b) of section 8-20-015 provides in pertinent part: "Whenever a police officer has probable cause to believe that a vehicle is subject to seizure and impoundment pursuant to this section, the police officer shall provide for the towing of the vehicle to a facility controlled by the city or its agents."
That subsection requires the police officer to notify any person claiming to be the owner or any person found to be in control of the vehicle at the time of the alleged violation of the seizure and the vehicle owner's right to request a vehicle impoundment hearing. Chicago Municipal Code §8-20-015(b) (amended July 10, 1996). If within 12 hours of impoundment the owner requests such a hearing, a City hearing officer must conduct a preliminary administrative impoundment hearing within 24 hours of impoundment, excluding Sundays and holidays. If the officer determines there was probable cause to believe the vehicle was subject to seizure, impoundment continues unless the owner posts a cash bond in the amount of $500 plus any applicable towing and storage fees. Chicago Municipal Code §8-20-015(c) (amended July 10, 1996). *fn3 The hearing officer must then hold a final administrative impoundment hearing within 30 days of seizure to determine whether, by a preponderance of the evidence, the vehicle contained the unregistered firearm or functioning firearm and whether any of the ordinance exceptions existed. If the hearing officer finds that the vehicle contained the firearm contraband and that none of the exceptions applied, he is required to enter an order finding the owner of record civilly liable to the City for the amount of the fine, towing costs and storage fees. Otherwise, the hearing officer must order the immediate return of the owner's vehicle or the cash bond. Chicago Municipal Code §8-20-015(d) (amended July 10, 1996). If the owner cannot pay the fine, the City is empowered to sell the vehicle to satisfy the debt. Chicago Municipal Code §8-20-015(e) (amended July 10, 1996).
Defendant Coach, the owner of the impounded vehicle involved in the commission of his weapons-related offenses, was arrested on April 14, 1997. He requested an administrative probable cause hearing with respect to the impounded vehicle. At the preliminary impoundment hearing, held on April 16, 1997, the City hearing officer found probable cause for continued impoundment of the vehicle.
With respect to the criminal charges filed against Coach, which proceeded simultaneously, the circuit court Judge sitting in the criminal division found no probable cause to detain Coach on the State felony charge of unlawful use of a weapon (720 ILCS 5/24-1(a)(4) (1996)). At that hearing, held on April 15, 1997, the court dismissed the State charge as well as the City's charge of driving without head lamps (Chicago Municipal Code §9-76-050(b) (1990)). On April 16, 1997 at a hearing held in the City's absence, the circuit court Judge entered an order directing the City to release Coach's impounded vehicle without payment of fees or costs. It is undisputed that no motion had been filed in the circuit court seeking that release and that the City had not been provided with notice or opportunity to be heard on the impoundment issue. It also is undisputed that a copy of the release order was left on the chair of an assistant corporation counsel assigned to a nearby courtroom. On the afternoon of April 16, 1997, Coach appeared at the Chicago department of revenue's vehicle impoundment office with a copy of the court's release order. City employees at the impoundment office refused to release the car at that time without payment of the bond.
On April 17, 1997, the City filed a motion to vacate the April 16, 1997 release order, arguing lack of notice and lack of subject matter jurisdiction. Also on April 17, 1997, Coach secured the release of his vehicle by posting a cash bond in accordance with the municipal ordinance. On May 2, 1997, the court struck the City's motion to vacate, stating, "The City has made no effort to comply with the order entered by this Court and is therefore denied standing to move for the vacation of this order." The court also entered a rule to show cause directing the corporation counsel, her deputy and chief assistant to show why they should not be held in contempt for failing to comply with the court's April 16, 1997 release order and "other like orders" (which the court subsequently explained to be orders in other like cases entered within the previous six months).
On May 9, 1997 the court entered an order of contempt against the City and its corporation counsel based on the City's failure to comply with the court's April 16, 1997 order relative to Coach and with orders in "like" cases dated April 11, 1997; April 22, 1997; April 28, 1997; April 30, 1997 and May 7, 1997. As to defendant Coach, the court found the City refused to release Coach's car without bond, refused to comply with the Coach release order, advised City employees not to comply with the court's order, and filed motions to vacate. The court assessed a daily fine of $500 against each respondent beginning April 25, 1997 and continuing every day thereafter against each respondent until the contempt was purged by the return of Coach's cash bond to him. *fn4
Defendants Lee and Cates were not the owners of the vehicles involved in the commissions of their firearm-related offenses. Those vehicles were owned by Lee's father and Cates' mother, respectively. With respect to Jaudon, there is strong support for the Conclusion that Jaudon co-owned the vehicle with his grandmother. *fn5 No administrative probable cause hearings were requested or held with respect to the impoundment of those vehicles. Unlike the facts in the Coach case, the circuit court Judges found probable cause to detain Jaudon, Lee and Cates but, upon oral motion, ordered the return the impounded vehicles to their respective owners without payment of fees or costs by those vehicle owners. In the Jaudon proceedings, as in the Coach case, the City was not provided notice of the oral request by the defendant to the trial court for the return of the impounded vehicle; and counsel for the City was not present when the circuit court ordered the release of the vehicle. In the Lee and Cates proceedings, the circuit court Judge abruptly summoned an assistant corporation counsel to appear before it at which time the court entered the release orders for the impounded vehicles. In the latter proceedings, the Judge rejected the City's objection of lack of adequate notice and refused to give the City any opportunity to respond in writing to the requests for the release of those vehicles.
The City filed motions to vacate the various release orders, and those motions were denied. The vehicles impounded in the Lee and Jaudon cases were subsequently released pursuant to the circuit court release orders by the City to their respective owners without the posting of bonds. *fn6 Pursuant to the City's motion, this court stayed the release order entered by the circuit court in the Cates case.
On appeal, the City argues that the circuit court orders requiring release of the impounded vehicles were erroneous because they ignored the City's home-rule ordinance allowing for seizure and impoundment of vehicles. Before we can address this issue, we must first consider Coach's argument that the municipal ordinance allowing for impoundment was unconstitutional. We note, however, that this argument was not raised by any of the parties below nor expressly ruled upon by the circuit court. Generally, an appellee may raise any argument or basis supported by the record to show the correctness of the judgment even though such argument was not previously advanced if the facts alleged in support of this contention were before the trial court. E.g., Shaw v. Lorenz, 42 Ill. 2d 246, 248, 246 N.E.2d 285, 287 (1969); Hickey v. Illinois Central R.R. Co., 35 Ill. 2d 427, 439-40, 220 N.E.2d 415, 421 (1966); Dow v. Columbus-Cabrini Medical Center, 274 Ill. App. 3d 653, 655, 655 N.E.2d 1, 3 (1995); Harris Trust & Savings Bank v. Joanna-Western Mills Co., 53 Ill. App. 3d 542, 554, 368 N.E.2d 629, 638 (1977); In re Estate of Waitkevich, 25 Ill. App. 3d 513, 518, 323 N.E.2d 545, 549 (1975). But see Jensen Disposal Co. v. Town of Warren, 218 Ill. App. 3d 483, 486-87, 578 N.E.2d 605, 607 (1991). Moreover, this Court can address an issue not raised in the trial court because the waiver rule is a limitation on the parties, not on the jurisdiction of the courts. Committee for Educational Rights v. Edgar, 174 Ill. 2d 1, 11, 672 N.E.2d 1178, 1183 (1996). As stated in Edgar: "[A] reviewing court may consider an issue not raised in the trial court if the issue is one of law and is fully briefed and argued by the parties. [Citations.] *** Furthermore, the questions presented are of substantial public importance, and we believe the public interest favors consideration of the merits." Edgar, 174 Ill. 2d at 11, 672 N.E.2d at 1183 (considering appellant's constitutional issue not raised in trial court).
Here, the question of the constitutionality of section 8-20-015 of the Municipal Code of Chicago was sufficiently briefed by Coach in his appellee's brief and by the City in its reply brief. Furthermore, as in Edgar, the constitutionality of the City's ordinance involves an area of strong public interest in so far as it concerns ...