The opinion of the court was delivered by: Justice Thomas
JUSTICE THOMAS delivered the judgment of the court, with opinion.
Chief Justice Kilbride and Justices Garman, Karmeier, Burke, and Theis concurred in the judgment and opinion.
Justice Freeman specially concurred, with opinion.
¶ 1 This appeal arises from a class action lawsuit filed in 2000 by plaintiff Gazi Mashal against defendants, the City of Chicago and various City officials in their official capacity. The class was certified in 2002, but was decertified in 2008, when the circuit court of Cook County determined that a partial summary judgment order entered in 2005 resolved the overriding legal issue, thereby destroying the commonality requirement for a class action because common questions no longer predominated over any questions affecting only individual members (735 ILCS 5/2-801 (West 2004)). Thereafter, the circuit court eventually certified four questions for interlocutory review under Illinois Supreme Court Rule 308 (eff. Feb. 1, 1994). Those four questions hinged on whether the 2005 ruling, which granted partial summary judgment on the legal issue on which the case was premised, constituted a "decision on the merits" after which time the entry of a class decertification order would be precluded under section 2-802(a) of the Code of Civil Procedure (the Code) (735 ILCS 5/2-802(a) (West 2004)). The appellate court answered the four certified questions in favor of the City. 408 Ill. App. 3d 817. We now affirm the appellate court.
¶ 3 Gazi Mashal is a taxi driver in the City of Chicago. In September 2000, he filed the instant suit in the circuit court of Cook County to challenge the City's issuance of "fly-by traffic citations" or "flying tickets," which is service of a ticket by mail, without first having attempted to serve notice at the scene of the parking or standing violation by handing the ticket to the driver or placing it on the offending vehicle. Mashal alleged that the City and its police department have adopted a policy and practice of issuing fly-by traffic citations "after the fact, without the officer confronting the driver." He further alleged that the practice violates a state statute and a municipal ordinance requiring that when a Chicago police officer or other authorized City employee observes a vehicle parked or standing in violation of any provision of the Municipal Code of Chicago, an initial notice of the violation should be handed to the driver or affixed to the vehicle, and a second notice should be mailed to the vehicle's registered owner. See 625 ILCS 5/11-208.3(b)(3), (b)(5)(i) (West 2010); Chicago Municipal Code § 9-100-30(b) (amended Feb. 10, 2009), § 9-100-050(d) (amended Dec. 7, 2005). Mashal requested injunctive relief, along with damages for himself and other taxi drivers who paid fines or incurred other penalties and expenses in connection with fly-by traffic citations during the 10 years before the action was filed.
¶ 4 Mashal moved to certify as a class all Chicago taxi drivers who were issued "fly-by" citations and, as a result, were subject to any of the following: penalties or fines; vehicle seizure; or suspension or revocation of a taxi chauffeur's license or driving privileges. In support of his motion, Mashal presented affidavits of 30 purported class members stating that they had received fly-by traffic citations. Cook County circuit court Judge Richard Siebel entered a class certification order on July 25, 2002, finding that "a class should be certified at this time." In so doing, Judge Siebel defined "fly-by citations" as a situation "where a police officer or parking enforcement employee notes the number of the offending taxicab without approaching or confronting the taxicab driver, and a violation of notice is mailed to the taxicab licensee with a noted date, location, and time of violation."
¶ 5 In March 2005, Mashal filed a motion for partial summary judgment on the City's "liability" for issuing the citations. Mashal asked the court to decide the legality of the City's alleged practice of issuing fly-by traffic citations. Mashal argued that the City does indeed have a practice of issuing "fly-bys" and that such a practice violates provisions of the Illinois Vehicle Code and the Chicago Municipal Code. See id. In support of his motion, Mashal attached the affidavit of his attorney, Leo Bleiman, which asserted that he was contemporaneously filing the affidavits of 211 taxi drivers and class members who were attesting that they had received fly-by citations.
¶ 6 In July 2005, the City filed its own motion for summary judgment, as well as a response to Mashal's motion for partial summary judgment. In response to Mashal's arguments, the City first argued that Mashal was misreading the applicable provisions of the Illinois Vehicle Code and the Chicago Municipal Code, and that those provisions do not preclude serving initial notices of violation by mail. In any event, the City argued, the facts did not support the notion that there was in fact a practice on the part of the City to issue fly-by citations. The City offered counter evidence that the issuance of flying tickets was infrequent, noting that Lieutenant Maureen McMahon testified in her deposition that she was the Chicago police department's commanding officer of Loop traffic. According to Lieutenant McMahon, she supervised 113 traffic control aides in downtown Chicago, and the City's practice has been for traffic control aides to hand violation notices to drivers or affix them to the cars, except where, as happens infrequently, the driver becomes confrontational or drives away before that can be done, in which case notice is served by mail. This was also the practice of the City before she was assigned to her position in November 2002.
¶ 7 The City also raised a number of affirmative defenses. It argued that the putative class members were barred from litigating their claims because they failed to first challenge the citations at the department of administrative hearings. The City also argued that the claims were barred by res judicata, collateral estoppel, the voluntary payment doctrine and failure to exhaust administrative remedies.
¶ 8 On December 9, 2005, Judge Siebel granted Mashal's motion for partial summary judgment and denied the City's motion for summary judgment. In so doing, the judge characterized Mashal's motion as seeking a declaration as to the legality of issuing fly-by tickets. He noted that the legal question of whether the issuance of initial notice of parking or standing violations by mail violates the statute or ordinance is a matter of first impression in Illinois. He then found that both the provisions of the statute and ordinance provide for "the same and only two methods for providing initial delivery to a purported violator." The first method is by directly delivering the violation notice or complaint to the driver. The second method is by affixing the violation notice or complaint to the motor vehicle that is in violation of the law. The judge concluded:
"Mashal's motion for partial summary judgment is granted, the Court declaring that the practice of sending a second notice prior to an initial notice being either hand delivered to the driver or affixed to the vehicle violates the plain language of the Statute and Ordinance."
Finally, the judge did not address the question of whether the City in fact had a practice of issuing fly-by citations, nor did he address whether any fly-by citations had in fact been issued. Instead, he stated that the "court makes no declaration as to the remaining issues for the reason that genuine issues of material fact exist as to the number of 'fly-by' tickets issued by the City during the relevant time period."
¶ 9 In September 2006, the City filed a motion for partial summary judgment based on the contention that the class claims were time-barred, except those arising within the one-year limitations period of section 8-101 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/8-101 (West 2006)) or, alternatively, within the five-year limitations period of section 13-205 of the Code of Civil Procedure (735 ILCS 5/13-205 (West 2006)). Judge Siebel, who had handled the case up to this point, retired and was replaced by Judge Stuart Palmer. Judge Palmer found that the five-year statute of limitations applied and held that all claims before September 13, 1995, were barred.
¶ 10 In January 2007, the City moved to decertify the class, arguing that because of Judge Siebel's resolution of the predominate legal issue in the case, it became clear that individual issues now predominate over common issues such that class certification was no longer warranted. In response, Mashal took the position that liability was no longer an issue and that only damages remained to be determined. Mashal relied upon the more than 200 affidavits of the taxi drivers that he had submitted.
¶ 11 Judge Palmer granted the City's motion to decertify the class in July 2008. He found that the credibility of Mashal's affidavits was seriously questioned by the City and that they were not undisputed, as Lieutenant McMahon testified that officers were permitted to mail the notice of citation only when service on the street was frustrated, i.e., only after attempting to personally serve the taxi driver or affix the citation to the vehicle. Judge Palmer found that Judge Siebel's December 2005 order was in essence a declaratory judgment with regard to the legality of an alleged practice. Judge Palmer further found that plaintiffs' repeated argument that Judge Siebel's ruling foreclosed liability was nothing more than "an effort to mischaracterize" Siebel's ruling.
¶ 12 Judge Palmer noted that Judge Siebel's December 2005 order did not address those instances where service was frustrated by the driver, either when the driver became confrontational or drove away when he saw the officer approaching. Judge Palmer concluded that the City was entitled to a trial for each and every ticket because it maintains that in 100% of the cases, the officer either unsuccessfully attempted to serve the citation but was frustrated by the driver, or the citation was in fact affixed to the vehicle, but it was removed by the wind or some other agency.*fn1 The court noted that based on Mashal's estimation of the number of claimants, as many as 16,000 trials would have to be held to determine liability. The court concluded that as a result of changed circumstances since the original certification order,*fn2 commonality no longer exists and class action is no longer an appropriate method for the fair and efficient adjudication of the controversy.
¶ 13 Mashal filed a motion in the circuit court under Illinois Supreme Court Rule 308 (eff. Feb. 1, 1994) to certify a single question for interlocutory review: whether Judge Siebel's December 2005 order granting Mashal partial summary judgment was a "decision on the merits" such that a subsequent judge lacked authority under section 2-802 of the Code to decertify the class. The circuit court denied the motion.
¶ 14 Mashal then filed a motion for a supervisory order in this court.
In July 2009, this court entered a supervisory order directing the circuit court to certify the following four questions for appeal pursuant to Supreme Court Rule 308:
I. What is a decision on the merits under section 2-802 of the Code that would preclude the entry of a class decertification order?
II. Whether, in a class action challenging defendants' practice of issuing parking or standing violations to taxi drivers and others by mail and without any personal service on the driver or placement of the citation on the offending vehicle, a prior judge's ruling that the defendants' "practice of sending a second notice of a parking or standing violation prior to an initial notice being either hand delivered to the driver of the vehicle or affixed to the vehicle is violative of the plain language of the operative statute and the ordinances" constitutes a decision on the merits under section 2-802 of the Code such that a subsequent judge presiding in the case lacks the authority to decertify the class.
III. Whether, in a class action challenging defendants' practice of issuing parking or standing violations to taxi drivers and others by mail and without any personal service on the driver or placement of the citation on the offending vehicle, a prior judge's ruling that denied the defendants' motion for partial summary judgment on the application of their affirmative defenses of failure to exhaust administrative remedies, res judicata, the collateral attack doctrine, and the voluntary payment doctrine constitutes a decision on the merits under section 2-802 such that a subsequent judge presiding in the case lacks the authority to decertify the class.
IV. Whether, in a class action challenging defendants' practice of issuing parking or standing violations to taxi drivers and others by mail and without any personal service on the driver or placement of the citation on the offending vehicle, a judge's ruling that granted in part the defendants' motion for summary judgment on the application of the statute of limitations constitutes a decision on the merits under section 2-802 such that the judge lacks authority to decertify the class.
This court also directed the appellate court to accept the appeal and to answer the four certified questions. The circuit court subsequently certified those questions, and the appellate court allowed the appeal and answered the questions.
¶ 15 With respect to the first question, the appellate court determined that for a decision to be "on the merits" under section 2-802, there must be a "complete determination of liability on a claim, based on the facts disclosed by the evidence," but noted it is something less than a final judgment requiring a determination of remedies. 408 Ill. App. 3d at 819, 822-24. As to the second question, the court held that while the predominant legal issue had been decided, Judge Palmer made clear that there still remained "the determination of the highly contested issue of whether any of these citations, or at least which of these citations were issued in this manner." Id. at 825. Therefore, the grant of partial summary judgment in favor of plaintiff Mashal was not a decision on the merits and did not preclude decertification. As to the third question, the appellate court held that the circuit court did not enter a "decision on the merits" because the court made no finding of liability. Id. at 826. The appellate court explained that the ruling denying the City's summary judgment motion merely removed certain affirmative defenses, but still allowed the City to defend each claim on the merits. Id. As to the fourth question, the appellate court held that because the partial summary judgment ruling on the statute of limitations did not determine liability as to the remaining members of the class, there was no decision on the merits. Id. at 827.
¶ 16 Mashal filed a petition for leave to appeal (Ill. S. Ct. R. 315 (eff. Feb. 26, 2010)), ...