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Jay F. Shachter v. the City of Chicago

December 5, 2011


Appeal from the Circuit Court of Cook County. No. 09 M1 450812 Honorable William G. Pileggi, Judge Presiding.

JUSTICE ROCHFORD delivered the judgment of the court, with opinion. Justices Hall and Karnezis concurred in the judgment and opinion


¶ 1 This appeal arises out of an administrative proceeding in which plaintiff-appellant, Jay F. Shachter, was found to have violated two municipal ordinances involving the care of his property and the parkway outside his home. Plaintiff thereafter filed a complaint in the circuit court for administrative review and declaratory judgment against defendants-appellees, The City of Chicago, a municipal corporation (the city), the department of administrative hearings, and the department of streets and sanitation. In that complaint, plaintiff asserted a number of procedural and substantive challenges to the administrative proceedings, as well as constitutional challenges to the two municipal ordinances he was found to have violated. After having quashed plaintiff's subpoenas, denied plaintiff's request to present additional evidence, and denied a motion for substitution of judge, the circuit court affirmed the administrative findings and rejected plaintiff's constitutional challenges.

¶ 2 On appeal, plaintiff raises a number of challenges to both the administrative and circuit court proceedings, and also continues to press his constitutional challenges to the ordinances themselves.

For the reasons that follow, we affirm.


¶ 4 On October 23, 2009, an officer of the city's department of streets and sanitation completed a written "ADMINISTRATIVE NOTICE OF ORDINANCE VIOLATION." That notice of violation asserted that conditions on or near property plaintiff owned on the northwest side of Chicago caused him to be in violation of two provisions of the Chicago Municipal Code (municipal code). Specifically, the notice alleged that weeds on plaintiff's property were over 10-inches tall and that plaintiff had failed to maintain the parkway in front of his property. These conditions were alleged to be in violation, respectively, of sections 7-28-120(a) and 10-32-050 of the city's municipal code. Chicago Municipal Code § 7-28-120(a) (amended Dec. 4, 2002) (weed ordinance), § 10-32-050 (amended July 10, 2002) (parkway ordinance). Finally, the notice indicated that an administrative hearing on these violations had been scheduled for November 24, 2009. This notice of violation was mailed to plaintiff on November 2, 2009.

¶ 5 The hearing was held as scheduled before an administrative law officer (ALO) sitting in the city's department of administrative hearings, environmental safety hearings division. Plaintiff appeared and was sworn in as a witness. The ALO thereafter recited the two violations as specified on the notice of violation, stated that the officer who had completed the notice of violation had also taken pictures of plaintiff's property and the parkway in front of plaintiff's property, and indicated that these photos had been provided to the ALO with attached descriptions. The ALO then stated that these photos and the officer's descriptions indicated that plaintiff's property and the parkway in front of his property contained overgrown weeds and grass, this situation was "attracting rodents," and that plaintiff was a "repeat offender." The ALO then entered the photos into the record, found that the city had stated a cause of action for the alleged violations, and asked plaintiff: "What's your defense? Tell me why this is not a violation."

¶ 6 Plaintiff stated that he had a written motion to dismiss, which the ALO indicated he was not authorized to hear. This written motion is not contained in the record on appeal. Nevertheless, after plaintiff stated he did not want to waive any challenge he might later raise in the circuit court, he was allowed to read his motion into the record. The transcript indicates that plaintiff's motion asserted that the city had failed to provide him with proper notice of the administrative hearing because the name of the officer completing the notice of violation was not included on that document. The ALO denied this motion on the grounds that he was not authorized to hear such prehearing motions to dismiss.

¶ 7 Plaintiff then asked to see the "original complaint" filed in this case. The ALO indicated that this request was not relevant in light of the fact that he had already found that the city's written notice of violation and the photos, taken together, had stated a cause of action. The ALO then indicated that plaintiff could further pursue this issue before the circuit court.

¶ 8 Plaintiff thereafter presented a written request for a subpoena compelling the appearance and testimony of the officer who issued the notice of violation. The written motion was entered into the record and plaintiff was given an opportunity to support that motion with oral argument. In both the written motion and oral argument, plaintiff generally asserted that because what was or was not a "weed" was "inherently ambiguous and subjective," and because he had a right to cross-examine witnesses pursuant to section 1-2.1-5(c) of the Illinois Municipal Code (65 ILCS 5/1-2.1-5(c) (West 2008)), "there is no other way the City's case can be made other than by having the person who took those photographs come in here and identity for your sake as well as for mine which of those plants he considers to be the weeds and which he does not." The ALO denied this motion as well, finding a decision could be made upon the evidence already presented.

¶ 9 Plaintiff then made a number of substantive and constitutional arguments with respect to the alleged violation of the city's weed ordinance. Substantively, plaintiff argued that the weed ordinance did not specifically define what a weed actually was. Citing to dictionary definitions defining a weed as a plant "growing where you don't want it," plaintiff argued that "[a]ll of the plants on my land are growing exactly where I want them." He also testified that his land was well tended, it was "the best tended land on [his] block," he tended the parkway as well, and other properties in the area were strewn with rubbish.

¶ 10 With respect to his constitutional arguments, plaintiff first argued that the weed ordinance was "fatally unspecific because it does not give the citizenry notice of what is and what is not prohibited." Specifically, plaintiff argued that the ordinance did not "specify what a weed is." Plaintiff then argued that the ordinance did not bear a rational relationship to any legitimate public purpose because: (1) the plants on his property were not noxious; and (2) nothing about the condition of his property contributed to any rodent problem. Plaintiff also argued that because the "right to property is a fundamental right guaranteed by the Illinois Constitution it must -- the ordinance must not only satisfy the rational relationship test but it must also satisfy the strict scrutiny test." Plaintiff finally argued that the ordinance had been arbitrarily enforced and that it also invited arbitrary enforcement.

¶ 11 Following plaintiff's argument, the ALO found that the alleged violations had been proven by a preponderance of the evidence and imposed a total of $300 in fines and $40 in administrative costs. Plaintiff's request to stay enforcement of this order was denied.

¶ 12 The following day, plaintiff filed a four-count complaint in the circuit court. The first count sought administrative review of the ALO's finding that he had violated the city's weed ordinance. That count included allegations that this ordinance: (1) was vague and subjective; (2) invited arbitrary enforcement; (3) had been arbitrarily enforced; (4) failed the "strict scrutiny" test because it limited the right to property in an overly broad manner; and (5) bore no rational relationship to any legitimate or intended public purpose. Count I also included allegations that: (1) the administrative hearing was conducted without proper notice; (2) plaintiff was denied his right to cross-examination at the hearing; (3) the city's case was improperly presented by an employee of the department of administrative hearings; and (4) the findings of fact at the administrative hearing were against the manifest weight of the evidence and contrary to law. Finally, count I sought reversal of the administrative finding with respect to the weed ordinance or a remand for further proceedings.

¶ 13 The second count of plaintiff's complaint specifically incorporated only the first five allegations discussed above and asked for a declaration that the city's weed ordinance was invalid. The third and fourth counts also sought administrative review and a declaratory judgment, respectively, and asserted nearly identical allegations with regard to the finding that plaintiff had violated the city's parkway ordinance. We do note that these two counts omitted any assertion that the parkway ordinance failed the "strict scrutiny" test or bore no rational relationship to any legitimate or intended public purpose.

¶ 14 In an order entered on February 1, 2010, defendants were granted leave to file their answer instanter, and plaintiff was ordered to file a written "specification of the errors relied upon for reversal" pursuant to section 3-108 of the Code of Civil Procedure (Code) (735 ILCS 5/3-108 (West 2008)). That order also granted defendants leave to file a written response to the specification of errors and continued the matter to June 8, 2010. Plaintiff filed his specification of errors on March 18, 2010, and raised many of the same issues and arguments, including the constitutional challenges, that he had raised in the administrative hearing.*fn1 Defendants filed their response on April 30, 2010, arguing that the administrative proceedings were proper, the findings of the ALO were supported by the evidence presented, and the ordinances themselves were constitutional.

¶ 15 On May 24, 2010, and June 7, 2010, plaintiff had subpoenas issued seeking to have two Chicago park district employees testify at the June 8, 2010, hearing. At that hearing, an attorney for the park district presented a motion to quash plaintiff's subpoenas, and that motion was supported by the defendants. While the written motion itself does not appear in the record, following oral argument the trial court granted the park district's motion. The trial court's decision was based on its finding that the circuit court was not allowed to hear additional evidence in administrative review cases. The circuit court therefore rejected plaintiff's argument that such an evidentiary limitation should not apply here because he had specifically pleaded in his complaint -- in addition to his two counts seeking administrative review -- two separate counts seeking a declaratory judgment that the two municipal ordinances involved in the administrative proceeding were unconstitutional.

¶ 16 Despite granting the motions to quash, the circuit court agreed to include language in its order allowing plaintiff to seek an interlocutory appeal pursuant to Supreme Court Rule 308(a). Ill. S. Ct.

R. 308 (eff. Feb. 26, 2010). The question certified by the circuit court was "whether the Circuit Court may hear new evidence in adjudicating a constitutional challenge." However, the circuit court denied plaintiff's request to stay the proceedings pending resolution of plaintiff's Rule 308 application for leave to appeal and set the matter for a future hearing on September 7, 2010. This court denied plaintiff's application for interlocutory appeal in an order entered on July 27, 2010. While plaintiff's application for leave to appeal was pending in this court, he filed a motion asking the circuit court to reconsider its June 8, 2010, order. That motion was heard at a final hearing held on September 21, 2010.

¶ 17 At that hearing, the circuit court first denied plaintiff's motion to reconsider. In its written order, the circuit court made it clear that plaintiff would not be permitted to introduce any evidence in support of either his administrative review counts or the counts seeking declaratory judgment. The circuit court then addressed a petition, filed by plaintiff on the day of the hearing, requesting a substitution of judge for cause pursuant to section 2-1001(a)(3) of the Code. 735 ILCS 5/2-1001(a)(3) (West 2008). In that petition, plaintiff asserted that the circuit court had been biased by being presented with defendants' written response to his specification of errors. Plaintiff claimed that this written response was not permitted because the circuit court only granted defendants leave to file such a response and section 3-108(b) of the Code only allows parties to file additional pleadings where they are "required by the court." (Emphasis added.) 735 ILCS 5/3-108(b) (West 2008).

¶ 18 The circuit court denied plaintiff's petition, finding it untimely and unfounded. The circuit court judge also rejected plaintiff's assertion that he had no authority to rule on the petition for substitution and that the petition must rather be heard by a different judge. When the circuit court then asked plaintiff if he was prepared to continue to consideration of the merits of his complaint, plaintiff indicated that he did not believe he could continue to participate in the proceedings without waiving his argument that the petition for substitution of judge should have been heard by a different judge. Plaintiff maintained this position with respect to the circuit court's determination of both the two administrative review counts and the two declaratory judgment counts. After hearing argument from defendants, the circuit court entered an order affirming the administrative decision and finding the two municipal ordinances in question constitutional. Plaintiff now appeals.


¶ 20 On appeal, plaintiff raises a host of procedural, substantive, and constitutional challenges to both the administrative and the circuit court proceedings. He first asserts that the circuit court should not have ruled on the petition to substitute without transferring it to another judge for consideration and that the substitution petition should have been granted on the merits. He then raises a number of challenges to the administrative proceedings and also asserts that the ALO's findings were against the manifest weight of the evidence. Plaintiff's next contention is that the circuit court erred in denying him the opportunity to present evidence in support of his complaint for administrative review and declaratory judgment. Finally, plaintiff reasserts his arguments that the city's weed and parkway ordinances are unconstitutional. We address each of these arguments in turn.

¶ 21 A. Substitution of Judge

¶ 22 Plaintiff's first contentions on appeal involve his petition for substitution of judge. As noted above, plaintiff asserts that the circuit court erred by not transferring his petition for substitution to another judge for consideration and -- even assuming that such a transfer was not required -- the circuit court erred by denying that petition on the merits. We review these contentions first -- before further addressing plaintiff's other challenges to the administrative and circuit court proceedings -- because where a petition for substitution of judge is erroneously denied, "all orders entered subsequent to the denial are null and void." Chicago Transparent Products, Inc. v. American National Bank & Trust Co. of Chicago, 337 Ill. App. 3d 931, 945 (2002) (citing In re Dominique F., 145 Ill. 2d 311, 324 (1991)). Our review of a circuit court's ruling on a motion to substitute judge is de novo. Powell v. Dean Foods Co., 405 Ill. App. 3d 354, 359 (2010).

¶ 23 Here, plaintiff filed a petition to substitute judge "for cause" pursuant to section 2-1001(a)(3) of the Code, which in relevant part provides:

"(3) Substitution for cause. When cause exists.

(i) Each party shall be entitled to a substitution or substitutions of judge for cause.

(ii) Every application for substitution of judge for cause shall be made by petition, setting forth the specific cause for substitution and praying a substitution of judge. The petition shall be verified by the affidavit of the applicant.

(iii) Upon the filing of a petition for substitution of judge for cause, a hearing to determine whether the cause exists shall be conducted as soon as possible by a judge other than the judge named in the petition. The judge named in the petition need not testify but may submit an affidavit if the judge wishes. If the petition is allowed, the case shall be assigned to a judge not named in the petition. If the petition is denied, the case shall be assigned back to the judge named in the petition." 735 ILCS 5/2-1001(a)(3) (West 2008).

¶ 24 In construing this section, our supreme court has stated that the provisions of this statute:

"are to be liberally construed to promote rather than defeat the right of substitution, particularly where the 'cause' claimed by the petitioner is that the trial judge is prejudiced against him. [Citations.] The courts have also recognized, however, that a party's right to have a petition for substitution heard by another judge is not automatic. [Citations.] Principles of liberal construction do not excuse the obligation of parties to adhere to express statutory requirements. [Citation.] Trial courts are required to refer a petition to another judge for a hearing on whether cause for substitution exists only if the party seeking that relief is able to bring himself or herself within the provisions of the law. [Citation.]

In order to trigger the right to a hearing before another judge on the question of whether substitution for cause is warranted in a civil case pursuant to section 2--1001(a)(3), the request must be made by petition, the petition must set forth the specific cause for substitution, and the petition must be verified by affidavit. ***


To meet the statute's threshold requirements, a petition for substitution must allege grounds that, if true, would justify granting substitution for cause. [Citation.] Where bias or prejudice is invoked as the basis for seeking substitution, it must normally stem from an extra-judicial source, i.e., from a source other than from what the judge learned from her participation in the case before her. A judge's previous rulings almost never constitute a valid basis for a claim of judicial bias or partiality." In re Estate of Wilson, 238 Ill. 2d 519, 553-54 (2010).

¶ 25 Indeed, our supreme court has recently reaffirmed that "actual prejudice" must be established in any petition seeking substitution of a judge for cause. In re Marriage of O'Brien, 2011 IL 109039,

¶30. It had also been recognized that opinions " 'formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.' " Eychaner v. Gross, 202 Ill. 2d 228, 281 (2002) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)).

¶ 26 In this case, plaintiff's petition for substitution was premised upon the circuit court's handling of his written specification of errors and defendants' written response thereto. Plaintiff's petition asserted that by allowing, but not requiring, defendants to file a response his specification of errors, the circuit court had not properly followed section 3-108(b) of the Code. 735 ILCS 5/3-108(b) (West 2008).

¶ 27 The petition noted that while section 3-108 of the Code requires a plaintiff seeking administrative review to file a complaint, requires a defendant administrative agency to file an answer consisting of the record of the administrative proceedings, and allows the circuit court to require a plaintiff to file a specification of errors, it further provides: "No pleadings other than as herein enumerated shall be filed by any party unless required by the court." 735 ILCS 5/3-108(a),

(b) (West 2008). Plaintiff claimed that defendant's written response to his specification of errors in this case was not permitted because the trial court only granted defendants leave to file such a response, and section 3-108(b) of the Code allows parties to file additional pleadings only where they are "required by the court." (Emphasis added) 735 ILCS 5/3-108(b) (West 2008). Plaintiff further claims that he was prejudiced by defendant's written response, as the circuit court judge had ...

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