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Catom Trucking, Inc., Richard Mcdonald v. the City of Chicago

June 10, 2011

CATOM TRUCKING, INC., RICHARD MCDONALD,
TOM STELLMAN, AND CHAD STANKO,
PLAINTIFFS-APPELLANTS,
v.
THE CITY OF CHICAGO,
DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County No. 07 CH 1228 Honorable LeRoy K. Martin, Jr., Judge Presiding.

The opinion of the court was delivered by: Judge Epstein

JUDGE EPSTEIN delivered the judgment of the court, with opinion.

Presiding Justice Fitzgerald Smith and Justice Joseph Gordon concurred in the judgment and opinion.

OPINION

Catom Trucking, Inc. (Catom), its owner and principal, Tom Stellman, and two of its professional drivers, Richard McDonald and Chad Stanko, challenge in their second amended complaint (the Complaint) certain procedures and regulations allegedly adopted by the City of Chicago (the City) in furtherance of chapter 9-72 of the City's Municipal Code (the City Code) (Chicago Municipal Code, ch. 9-72). Chapter 9-72 regulates size and weight limits on the City's roadways, and plaintiffs frequently transport overweight loads. The trial court dismissed two of plaintiffs' six claims (counts II and V) and granted the City summary judgment on the remainder of the Complaint. Plaintiffs appeal all but the dismissal of count V. For the reasons below, we reverse in part, affirm in part, and remand for further proceeding.

BACKGROUND

Catom is a named defendant in two cases involving sections 9-72-070 and 9-72-080 of the City Code (Chicago Municipal Code § 9-72-070 (amended Nov. 15, 2006); § 9-72-080 (amended Dec. 7, 2005)) that were tried by the City's department of administrative hearings (the Department). Section 9-72-070 governs special permits for overweight vehicles and 9-72-080 addresses weight limitations, violations, and penalties. Catom is charged with violations under each section.

In count I of the Complaint, filed during the pendency of the Department's proceeding, Catom seeks a declaration that the Department lacks jurisdiction over Catom's claims because section 1-2.1-2 of the Illinois Municipal Code (the Administrative Adjudication Statute) (65 ILCS 5/1-2.1-2 (West 2008)) allegedly bars administrative adjudication of those claims. Count II is a request for a declaration that the City's permit requirements are invalid. Catom alleges that although the City requires a local permit for "trucks on State Route 38 within the City of Chicago, to the extent that the weight of the vehicle exceed 73,600 lbs," such a permit is not required because Route 38 falls within the jurisdiction of the state and not the City.

McDonald and Stanko claim in counts III and VI that they were improperly stopped and detained by employees of the City's department of consumer services. According to McDonald:

"On August 1, 2006, October 12, 2005, and some other occasions, the City's uniformed truck enforcement agents used vehicles with rotating flashing lights and red flags to stop the vehicle driven by McDonald and, upon stopping him, presented themselves to him, representing that they had the authority to stop the vehicle and to detain him, weigh his vehicle, and hold him until such time as bond was posted and until such time as they, in their discretion, advised him that he was free to go."

Stanko alleges a similar experience and maintains, along with McDonald, that the City cannot use non-police officers to make traffic stops or detain overweight vehicles.

Catom seeks a declaration in count IV that neither the City Code nor the state's statutes authorize the City's alleged requirement that "trucks which are found to be overweight in operation on the streets of the City of Chicago *** post bond in order to remove their vehicles." The trial court rejected all of plaintiffs' claims, summarily dismissing count II with prejudice and granting the City summary judgment on counts I, III, IV, and VI. Plaintiffs appeal, contending count II states a claim for relief and that summary judgment should have been granted in their favor and against the City on counts I, III, IV, and VI.

ANALYSIS

I. Catom Is Entitled to Summary Judgment on Count I Summary judgment is intended to determine whether triable issues of fact exist and "is appropriate where the pleadings, affidavits, depositions, admissions, and exhibits on file, when viewed in the light most favorable to the non-movant, reveal that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Busch v. Graphic Color Corp., 169 Ill. 2d 325, 333 (1996). "When, as in this case, parties file cross-motions for summary judgment, they concede the absence of a genuine issue of material fact and invite the court to decide the questions presented as a matter of law." Steadfast Insurance Co. v. Caremark Rx, Inc., 359 Ill. App. 3d 749, 755 (2005). "On appeal, our standard of review is de novo; and we may affirm the trial court's grant of summary judgment on any ground apparent from the record." Fan v. Auster Co., 389 Ill. App. 3d 633, 648 (2009). "As a general rule, a party who is aggrieved by administrative action cannot seek relief in the

courts without first pursuing all administrative remedies available to him." Walker v. State Board of Elections, 65 Ill. 2d 543, 551-52 (1976). One exception lies "where the agency's authority or jurisdiction is challenged." Midland Enterprises, Inc. v. City of Elmhurst, 226 Ill. App. 3d 494, 501 (1993). Here, Catom maintains the Administrative Adjudication Statute strips the Department of jurisdiction over Catom's claims. We agree.

The City, as a home rule unit, "possess the same powers as the state government, except where such powers are limited by the General Assembly." Johnson v. Halloran, 194 Ill. 2d 493, 496-97 (2000). The City "may exercise and perform concurrently with the State any power or function of a home rule unit to the extent that the General Assembly by law does not specifically limit the concurrent exercise or specifically declare the State's exercise to be exclusive." Ill. Const. 1970, art. VII, § 6(i). Catom maintains here that the Administrative Adjudication Statute limits the Department's authority. The statute provides:

"Any municipality may provide by ordinance for a system of administrative adjudication of municipal code violations to the extent permitted by the Illinois Constitution. A 'system of administrative adjudication' means the adjudication of any violation of a municipal ordinance, except for (i) proceedings not within the statutory or the home rule authority of municipalities; and (ii) any offense under the Illinois Vehicle Code [(625 ILCS 5/1-100 et seq. (West 2008))] or a similar offense that is a traffic regulation governing the movement of vehicles and except for any reportable offense under Section 6-204 of the Illinois Vehicle Code [(625 ILCS 5/6-204 (West 2008))]." 65 ILCS 5/1-2.1-2 (West 2008).

It is undisputed here that Catom's alleged violations of the City Code are not reportable under section 6-204. Nevertheless, Catom maintains those alleged violations fall within subsection (ii) of the statute because they are "identical to the offenses defined in the Illinois Vehicle Code and *** are traffic regulations governing the movement of vehicles over the public roadways." The City responds that its ordinances differ from the Illinois Vehicle Code (Vehicle Code); that Catom is misreading subsection (ii); and that, even if Catom's interpretation is correct, sections 9-72-070 and 9-72-080 "do not govern the movement of vehicles." We will address each in turn.

(A) Sections 9-72-070 and 9-72-080 Are Similar to the Vehicle Code Section 9-72-070 allows the executive director of the City's Office of Emergency Management and Communications to

"issue a special permit authorizing a vehicle or combination of vehicles not in conformity with the size regulations of th[at] chapter or the wheel and axle load and gross weight provisions of Section 15-111 of the Illinois Vehicle Code [(625 ILCS 5/15-112 (West 2008))], to be operated or moved upon any street or highway under the jurisdiction of the city." Chicago Municipal Code § 9-72-070(a)(1).

Section 9-72-070 mandates, in relevant part:

"(e) Every permit issued under this section shall be carried in the vehicle to which it refers and shall be produced for inspection upon request by any police officer or any other authorized agent of the city. If a permit is not produced upon request, the person operating the vehicle shall be deemed as operating the vehicle and its load without a permit in violation of this section.

(f) It shall be unlawful for any person issued a permit under this section, or any employee or agent of such person, to violate any of the terms or conditions of the ...


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