Appeal from the Circuit Court of Cook County. No. 10 M1 450118 Honorable Patrick T. Rogers, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Robert E. Gordon
PRESIDING JUSTICE ROBERT E. GORDON delivered the judgment of the court, with opinion.
Justices Lampkin and Palmer concurred in the judgment and opinion.
¶ 1 Plaintiff Ivy Jackson's vehicle was impounded by the defendant City of Chicago (the City) when police discovered two individuals smoking cannabis in the vehicle. After an administrative hearing, the City's department of administrative hearings (the Department) found Jackson liable for a violation of section 7-24-225 of the Chicago Municipal Code (Municipal Code) (Chicago Municipal Code § 7-24-225 (amended Dec. 15, 2004)), which provided that the owner of a vehicle found to contain controlled substances or cannabis was liable for an administrative penalty and which permitted the impoundment of the vehicle. On appeal to the circuit court of Cook County, Jackson raised a number of issues, including challenging the constitutionality of several of the ordinances applicable to the impoundment of her vehicle. The circuit court affirmed the Department's finding of liability and Jackson now appeals to the appellate court, challenging the constitutionality of sections 7-24-225, 2-14-132(3), 2-14-132(7), and 2-14-080 of the Municipal Code (Chicago Municipal Code §§ 7-24-225 (amended Dec. 15, 2004), 2-14-132(3), 2-14-132(7), 2-14-080 (amended Nov. 18, 2009)) under the state and federal constitutions. For the reasons that follow, we affirm.
¶ 3 On appeal, Jackson does not challenge the factual findings of the Department. Accordingly, we relate the facts as established at the hearing.
¶ 4 On January 26, 2010, Jackson appeared pro se at a hearing before an administrative law judge (ALJ) to contest the impoundment of her vehicle, which occurred on December 29, 2009. The vehicle was impounded pursuant to section 7-24-225 of the Municipal Code, which provides:
"(a) The owner of record of any motor vehicle that contains any controlled substance or cannabis, as defined in the Controlled Substances Act, 720 ILCS 570/100, et seq., and the Cannabis Control Act, 720 ILCS 550/1, et seq., or that is used in the purchase, attempt to purchase, sale or attempt to sell such controlled substances or cannabis shall be liable to the city for an administrative penalty of $1,000.00 plus any applicable towing and storage fees. Any such vehicle shall be subject to seizure and impoundment pursuant to this section. This subsection shall not apply: (1) if the vehicle used in the violation was stolen at the time and the theft was reported to the appropriate police authorities within 24 hours after the theft was discovered ***; (2) if the vehicle is operating as a common carrier and the violation occurs without the knowledge of the person in control of the vehicle; or (3) if the owner proves that the presence of the controlled substance or cannabis was authorized under the Controlled Substances Act or the Cannabis Control Act.
(b) 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 agent. When the vehicle is towed, the police officer shall notify any person identifying himself as the owner of the vehicle or any person who is found to be in control of the vehicle at the time of the alleged violation, if there is such a person, of the fact of the seizure and of the vehicle owner's right to request a preliminary hearing to be conducted under Section 2-14-132 of this code.
(c) The provisions of Section 2-14-132 shall apply whenever a motor vehicle is seized and impounded pursuant to this section." Chicago Municipal Code § 7-24-225 (amended Dec. 15, 2004).
¶ 5 The City's sole witness at the hearing was Chicago police officer Ugarte.*fn1 Officer Ugarte testified that on December 29, 2009, at approximately 8:20 p.m., he observed a vehicle parked on South Loomis in Chicago with two occupants, one in the driver's seat and one in the front passenger seat. The occupant in the driver's seat was slumped over the steering wheel, and Officer Ugarte approached the vehicle to check on his well-being. When the officer approached from the driver's side, he observed the driver make a move with his right hand to pass a partially burned rolled cigar that the officer suspected contained cannabis to the front passenger, who took it from the driver.
¶ 6 Officer Ugarte and his partner removed the occupants from the vehicle, and the occupant in the passenger's seat dropped a Ziploc bag containing a crushed plant-like substance that Officer Ugarte suspected was cannabis onto the passenger seat. The occupants were arrested for possession of cannabis. After the incident, the vehicle was towed and impounded.
¶ 7 In addition to Officer Ugarte's testimony, an affidavit in lieu of a court appearance was submitted on behalf of Illinois State Police forensic scientist Laneen Blount. The affidavit stated that Blount performed an analysis which concluded that the cigar weighed 1.4 grams and contained cannabis, and the bag and substance therein weighed 1.6 grams and contained cannabis.
¶ 8 The affidavit was permitted in evidence pursuant to section 2-14-132(7) of the Municipal Code, which provides:
"In a hearing on the propriety of impoundment under Section 7-24-226, any sworn or affirmed report, including a report prepared in compliance with Section 11-501.1 of the Illinois Vehicle Code, that (a) is prepared in the performance of a law enforcement officer's duties and (b) sufficiently describes the circumstances leading to the impoundment, shall be admissible evidence of the vehicle owner's liability under Section 7-24-226 of this Code, and shall support a finding of the vehicle owner's liability under Section 7-24-226, unless rebutted by clear and convincing evidence." Chicago Municipal Code § 2-14-132(7) (amended Nov. 18, 2009).
¶ 9 In her defense, Jackson argued that there was no probable cause for the officer to approach the vehicle because the driver was actually on the telephone while sitting in the vehicle, not slumped over. She also argued that the occupants were arrested because the police believed a tablet recovered from the occupant in the driver's seat was an ecstacy pill, which forensics showed to contain no "scheduled substance." Jackson testified that the vehicle was parked outside her home and she informed the officer that the vehicle belonged to her. Jackson further testified that she was not present when the incident occurred.
¶ 10 The ALJ found the officer's testimony credible to demonstrate a violation of section 7-24-225 due to the presence of cannabis and further found that, therefore, the City had the right to impound the vehicle. On January 26, 2010, the Department found Jackson liable for a violation of section 7-24-225 of the Municipal Code and imposed a penalty of $1,000, along with storage and tow fees, for a total judgment of $2,005.
¶ 11 On January 20, 2010, prior to Jackson's hearing but after the impoundment of her vehicle, Mitsubishi Motors Credit of America (Mitsubishi), the lienholder of Jackson's vehicle, sent Jackson a letter stating that a portion of her contract provided that she "agree[d] not to expose the vehicle to misuse or confiscation." The letter further stated that Jackson materially breached her contract, that Mitsubishi invoked its acceleration clause and terminated the loan agreement, and that Jackson had 10 days to pay the balance due under the loan agreement or else Mitsubishi would "take all necessary measures to recover the vehicle and thereafter sell it pursuant to the terms of [Jackson's] contract."
¶ 12 The record indicates that Mitsubishi included a paragraph in its loan agreement titled "Ownership and Loss" specifically addressing confiscation of vehicles. In that paragraph, Mitsubishi reserved the right to terminate a loan if a vehicle is exposed to "misuse or confiscation." The agreement further contains a section entitled "Repossession of the Vehicle for Failure to Pay," which states that "[i]f you fail to pay according to the payment schedule or if you break any of the agreements in this contract (default), the Creditor shall have the right in accordance with state law to enter onto property without breach of the peace and take the vehicle in which it has a security interest. The Creditor may exercise this right without notice to you."
¶ 13 On February 1, 2010, the City released the vehicle to Mitsubishi, after Mitsubishi informed the City that due to Jackson's default on the installment purchase contract, it was exercising its right to repossess the vehicle. The City permitted Mitsubishi to take possession of the vehicle due to section 2-14-132(3) of the Municipal Code, which provides:
"An administrative penalty, plus towing and storage fees, imposed pursuant to this section shall constitute a debt due and owing to the city which may be enforced pursuant to Section 2-14-103 or in any other manner provided by law. Any amounts paid pursuant to this section shall be applied to the penalty. Except as provided otherwise in this section, a vehicle shall continue to be impounded until (1) the administrative penalty, plus any applicable towing and storage fees, plus all amounts due for outstanding final determinations of parking and/or compliance violations (if the vehicle is also subject to immobilization for unpaid final determinations of parking and/or compliance violations), is paid to the city, in which case possession of the vehicle shall be given to the person who is legally entitled to possess the vehicle; or (2) the vehicle is sold or otherwise disposed of to satisfy a judgment or enforce a lien as provided by law. Notwithstanding any other provision of this section, whenever a person with a lien of record against a vehicle impounded under this section has commenced foreclosure proceedings, possession of the vehicle shall be given to that person if he or she pays the applicable towing and storage fees and agrees in writing to refund to the city the net proceeds of any foreclosure sale, less any amounts necessary to pay all lien holders of record, up to the total amount of penalties imposed under this section. Notwithstanding any other provision of this section, no vehicle that was seized and impounded pursuant to Section 7-24-225 shall be returned to the record owner unless and until the city has received notice from the appropriate state, or where applicable, federal officials that (i) forfeiture proceedings will not be instituted; or (ii) forfeiture proceedings have concluded and there is a settlement or a court order providing that the vehicle shall be returned to the owner of record." Chicago Municipal Code § 2-14-132(3) (amended Nov. 18, 2009).
In the lienholder payment agreement that Mitsubishi was required to execute prior to release of the vehicle, the City stated that it required companies to provide the department of revenue with all of the following documentation establishing a perfected secured lien and proof of purchaser default: (1) a true and accurate copy of the certificate of title for the vehicle issued by the Illinois Secretary of State's office showing the lienholder with first priority; (2) the motor vehicle installment agreement for the vehicle; (3) a notarized affidavit detailing the default of the owner/purchasor; and (4) contract provisions granting the lienholder the right of possession.
¶ 14 On March 2, 2010, Jackson filed a complaint for administrative review, alleging, inter alia, that sections 7-24-225 and 2-14-132 of the Municipal Code violated article I, sections 2 and 6, of the Illinois Constitution and the fourth, fifth, and fourteenth amendments of the United States Constitution because "the impounding of vehicles and the procedures for hearings thereon constitute[d] deprivations of property without due process of law and an unreasonable search and seizure." Ill. Const. 1970, art. I, §§ 2, 6; U.S. Const. amends. IV, V, XIV. Accordingly, Jackson asked for those sections of the Municipal Code to be found unconstitutional.
¶ 15 On September 9, 2010, Jackson filed a "specification of errors." Jackson claimed, inter alia, that sections 7-24-225 and 2-14-132 of the Municipal Code were unconstitutional for several reasons. She claimed that they were unconstitutional as applied to her because they violated her due process rights under article I, section 2, of the Illinois Constitution and the fourth and fourteenth amendments to the federal constitution since she identified herself as an owner at the scene but was not informed of her right to a preliminary hearing. She also claimed that they were unconstitutional under the same provisions of the constitutions because the ordinances did not provide an innocent owner exception to impoundment and therefore violated her procedural and substantive due process rights, and also claimed that they were unconstitutional because the ordinance permitted the City to retain the vehicle pending a determination of whether forfeiture proceedings would be instituted. She further claimed that the impoundment ordinance violated the equal protection clauses of both constitutions, that they violated her due process rights by permitting the release of the vehicle to a lienholder prior to the point at which she could seek judicial review of the impoundment, and that section 7-24-225 of the Municipal Code was unconstitutionally vague.
¶ 16 On March 11, 2011, the circuit court, in a written order without any stated reasoning, affirmed the Department's decision and denied Jackson's request to declare sections 7-24-225 and 2-14-132 unconstitutional. This appeal follows.
¶ 18 On appeal, Jackson raises constitutional arguments concerning four sections of the Municipal Code. She argues: (1) section 7-24-225 of the Municipal Code is unconstitutional because it violates a vehicle owner's substantive due process rights under the Illinois Constitution and is an unreasonable seizure in violation of the state and federal constitutions; (2) section 2-14-132(3) of the Municipal Code is unconstitutional because it violates a vehicle owner's procedural due process rights under the state and federal constitutions, violates the separation of powers provision of the state constitution, and is an impermissible taking for private use; and (3) section 2-14-132(7) violates a vehicle owner's due process right to confront witnesses, as does section 2-14-080 as applied to drug cases. We consider each argument in turn.
¶ 19 Judicial review of the Municipal Code is governed by the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2008)). Chicago Municipal Code § 2-14-102 (added Apr. 29, 1998). The Administrative Review Law provides for judicial review of questions of law and fact contained in the record. Lyon v. Department of Children & Family Services, 209 Ill. 2d 264, 271 (2004). An administrative agency's findings of fact are not reversed unless they are against the manifest weight of the evidence, and questions of law are reviewed de novo. See Lyon, 209 Ill. 2d at 271. De novo consideration means we perform the same analysis that a trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).
¶ 20 Whether an ordinance violates the constitution constitutes a question of law and is reviewed de novo. See Lyon, 209 Ill. 2d at 271. "In construing the validity of a municipal ordinance, the same rules are applied as those which govern the construction of statutes."
Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 306 (2008). Municipal ordinances are presumed constitutional (Chicago Allis Mfg. Corp. v. Metropolitan Sanitary District of Greater Chicago, 52 Ill. 2d 320, 327 (1972); Van Harken v. City of Chicago, 305 Ill. App. 3d 972, 976 (1999) (citing City of Chicago Heights v. Public Service Co. of Northern Illinois, 408 Ill. 604, 609 (1951)), and the challenging party has the burden of establishing a clear constitutional violation (People v. One 1998 GMC, 2011 IL 110236, ¶ 20). A court will affirm the constitutionality of a statute or ordinance if it is "reasonably capable of such a determination" and "will resolve any doubt as to the statute's construction in favor of its validity." One 1998 GMC, 2011 IL 110236, ¶ 20 (citing People v. Johnson, 225 Ill. 2d 573, 584 (2007), and People v. Boeckmann, 238 Ill. 2d 1, 6-7 (2010)).
¶ 21 As an initial matter, the City urges us to dismiss the constitutional challenges raised by Jackson under the doctrine of waiver. Generally, issues or defenses not raised before the administrative agency will not be considered for the first time on administrative review. Carpetland U.S.A., Inc. v. Illinois Department of Employment Security, 201 Ill. 2d 351, 396-97 (2002). Nevertheless, our supreme court has instructed that, although it had applied the waiver rule to prevent a party from raising a constitutional issue that had not been raised before the administrative agency, it "has refrained from adopting a bright-line rule 'requiring' a party to raise all constitutional issues ...