2015 IL App (1st) 150520 No. 1-15-0520 Opinion filed December 11, 2015
FIFTH DIVISION
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
KENNETH MASCHEK, Individually ) Appeal from the Circuit Court and on Behalf of All Other Similarly ) of Cook County. Situated, ) ) Plaintiff-Appellant, ) ) v. ) No. 13 L 014527 ) THE CITY OF CHICAGO, a Municipal ) The Honorable Corporation, ) Mary Lane Mikva, ) Judge, presiding. Defendant-Appellee. )
JUSTICE GORDON delivered the judgment of the court, with opinion. Presiding Justice Reyes and Justice Palmer concurred in the judgment and opinion.
OPINION
¶1 In this appeal, plaintiff Kenneth Maschek appeals the trial court's grant of
defendant City of Chicago's (City's) motion to dismiss. In this case, plaintiff No. 1-15-0520
challenged a traffic ticket, on the ground that the ticket was the result of an
automated speed enforcement (ASE) camera operating near Lane Tech College
Prep High School (Lane Tech) and that the law governing ASE cameras
prohibited the City from operating an ASE camera near a school on that day.
625 ILCS 5/11-208.8(a-5) (West 2012) (ASE law).
¶2 The ASE law governs the conduct of the City but not the driver. The
ASE law dictates when the City can and cannot operate ASE cameras.
However, drivers must still conform to the law, whether or not an ASE camera
is running. The speed limit for a vehicle in this City is 30 miles per hour, 1 and
plaintiff does not contest the fact that he was 11 miles per hour over this limit.
¶3 In addition, plaintiff paid the ticket and did not challenge the underlying
speeding violation. Thus, he waived for our consideration whether he was or
was not violating the law. On this appeal, he does not argue that he was
1 Under Illinois state law, unless some other speed restriction is established, "the maximum speed limit in an urban district for all vehicles is: 30 miles per hour[.]" 625 ILCS 5/11-601(c)(1) (West 2014). The Chicago Municipal Code states: "The provisions of Section 11-601 of the Illinois Vehicle Code shall be applicable on all streets within and under jurisdiction of the city. The absolute statutory urban speed limit shall be 30 miles per hour in streets[.]" Chicago Municipal Code, § 9-12-070(a) (amended Apr. 26, 2006). The Illinois Vehicle Code defines an "urban district" as: "The territory contiguous to and including any street which is built up with structures devoted to business, industry or dwelling houses situated at intervals of less than 100 feet for a distance of a quarter of a mile or more." 625 ILCS 5/1-214 (West 2014). Plaintiff does not contest that Lane Tech was in an urban district with a speed limit of 30 miles per hour, and that he was traveling 11 miles over this limit. 2 No. 1-15-0520
obeying the law, but argues only that, even if he was violating the law, the City
was not allowed to use an ASE camera to catch him. 2
¶4 Plaintiff argues that ASE cameras are allowed to operate only on school
days, that summer school days are not school days, and thus the City was not
allowed to issue an ASE-based ticket on June 26, 2014, the day he was
speeding. Plaintiff does not contest that this day was a scheduled class day for
special needs children at Lane Tech.
¶5 Special needs children have an extended school year, such that a
regularly scheduled school day for them included June 26, 2014, at Lane Tech.
See infra ¶¶ 74-76; 105 ILCS 5/14-13.01(b) (West 2014) (providing for up to
"235 school days"). Although plaintiff raises arguments about the "school year"
and the "school calendar," the operative phrase in the ASE law is "school
day[]", and a school day for a special needs child is defined as a day that he or
she is "in attendance at school for instructional purposes." 34 C.F.R. § 300. 11
(c)(1), (2) (2014); 23 Ill. Admin. Code 226.75 (2007) (adopting this definition
for Illinois).
¶6 Plaintiff engages in a number of hypotheticals–what if at another school,
the math team was meeting on a Saturday–would that count as a school day?
2 This is a question which he has standing to raise, for reasons we explain below. 3 No. 1-15-0520
However, that is not the case in front of us. In the case in front of us, plaintiff
was issued a ticket near a school where special needs children were attending
regularly scheduled classes.
¶7 Plaintiff argues how will a driver be on notice when he or she should
slow down. The ASE law, as applied to and argued by plaintiff, concerns
enforcement only, ie., when may the City use automatic cameras to catch
violators. However, the violation occurred whether or not the ASE camera was
operating. The law governing plaintiff's behavior was still in effect, whether or
not the ASE camera was running, and that law provided for a 30-mile per hour
speed limit. A driver does not have to be on notice about when he is most
likely to be caught.
¶8 Since the days of the horse and buggy, long before there were ASE
cameras, drivers knew to slow down near a school. Society benefits if drivers
have an automatic, knee-jerk reaction–see a school, slow down. Even when
classes are not in session, children have a tendency to gather and play on the
amenities which schools often provide, such as basketball courts and open
spaces. Encouraging drivers to slow down furthers the safety of children,
whether or not the drivers are caught. This "slow down" is specifically what the
sponsor of the ASE bill claimed as a safety benefit, which benefits society as a
whole. See 97th Ill. Gen. Assem., House Proceedings, Nov. 9, 2011, at 131.
4 No. 1-15-0520
¶9 Plaintiff argues that there were only 70 students at the school, and 70
children is not enough to matter, when you consider the overall population of
that particular school. However, he does not state how many children it does
take to matter, and neither did the legislature. The law is phrased in terms of a
school day, not in terms of numbers of children or percentages at a particular
school. The law applies to even the smallest primary school in Chicago.
¶ 10 For these reasons and the reasons which we discuss below, we find that
"school days" includes the special education classes which were in session at
Lane Tech on June 26, 2014, and we affirm. Since special needs children were
in school on June 26, 2014, at Lane Tech, we need not make a determination
with respect to the other classes in session.
¶ 11 BACKGROUND
¶ 12 I. The Complaint
¶ 13 On October 31, 2014, plaintiff filed a complaint which alleged that he
received a $100 speeding ticket as the result of the operation of an ASE camera
on June 26, 2014, and that he paid the fine. Plaintiff alleged that the camera
was located in a "School Safety Zone at 2549 W. Addison St. which is adjacent
to Lane Tech College Prep High School," and that he was "the registered owner
of the vehicle." Plaintiff alleged that, on September 18, 2014, the City of
Chicago issued a press release stating that ASE " 'enforcement hours will be 5 No. 1-15-0520
limited from 7 a.m. to 7 p.m. in safety zones around schools on school days
(Monday through Friday).' " Plaintiff claimed that the regular academic year
had already ended and would not begin again until September 2, 2014, and thus
the City was not allowed to operate an ASE camera on Thursday, June 26,
2014. Plaintiff sought class certification and brought counts for declaratory
judgment, injunction, unjust enrichment and fraud.
¶ 14 II. Defendant's Motion to Dismiss
¶ 15 On December 17, 2014, defendant City of Chicago moved to dismiss
plaintiff's complaint pursuant to section 2-619(a)(9) of the Code of Civil
Procedure on the ground that plaintiff's claims were barred by an "affirmative
matter avoiding the legal effect of or defeating the claim." 735 ILCS 5/2-
619(a)(9) (West 2014).
¶ 16 Defendant argued: "In short, Plaintiff challenges the authority of the City
to cite his vehicle for travelling 41 miles per hour in a 30 mile per hour zone
adjacent to Lane Tech *** at 5:26 p.m. on June 26, 2014, using [ASE] cameras
because Plaintiff believes that June 26, 2014, was not a 'school day.' The City
is only authorized to use ASE cameras adjacent to schools on 'school days.' "
¶ 17 Defendant further argued: "All of Plaintiff's claims fail because it is an
easily proved issue of fact that classes were in session at Lane Tech on June 26,
2014, and accordingly June 26, 2014, was a school day at Lane Tech." 6 No. 1-15-0520
¶ 18 Defendant also argued (1) that plaintiff lacked standing to claim that he
had been issued a ticket not authorized by law, since that had not happened to
him; (2) that he had failed to exhaust his administrative remedies, since he
voluntarily paid the ticket; and (3) that the Tort Immunity Act barred plaintiff's
fraud claim. 745 ILCS 10/2-107 (West 2014).
¶ 19 Defendant attached exhibits which included a copy of the ticket mailed to
plaintiff. The ticket, which was entitled an "Automated Speed Enforcement
Violation," informed plaintiff that he had 14 days, or until July 27, 2014, to pay
$100, or contest the ticket by mail, or request an in-person hearing. The ticket
listed the "Violation Code" as "9101020**," which the City's website explains
is for speeding 11 miles per hour or more over the speed limit and is subject to a
$100 fine. http://www.cityofchicago.org/city/en/depts/fin/supp_info/revenue/
general_ parking_ticketinformation/violations.html (from a list of "speed
violations that can be issued," current as of April 2014). The ticket listed the
"Description" of the violation as a "Speed Violation 11+," for traveling 11 miles
or more over the speed limit, and it stated that the vehicle was traveling 41
miles per hour. The ticket also described the violation as occurring on July 26,
2014, at 5:26 p.m., in a "School Safety Zone." 3
3 The Chicago Municipal Code authorizes a fine of $500 for traveling more than 20 miles per hour in a school safety zone on "a school day." However, 7 No. 1-15-0520
¶ 20 Defendant's attached exhibits also included the affidavit of Nancy
Quintana, the Executive Director of Instructional Support for the Board of
Education of the City of Chicago who swore, in relevant part, that:
"5. During the summer of 2014, classes were held and students were
present at Lane Tech on Mondays, Tuesdays, Wednesdays, and
Thursdays from June 23, 2014 until July 31, 2014.
6. June 26, 2014, was a Thursday and classes were in session [at]
Lane Tech on that day.
7. Classes offered at Lane Tech in the summer of 2014 included
extended school year ('ESY') classes for students with special needs and
virtual learning credit recovery classes. Both types of classes were in
session on June 26, 2014.
8. At Lane Tech during the 2014 summer session approximately 60
students were enrolled in ESY classes and approximately 40 students
actually attended ESY classes.
plaintiff's ticket was for only $100. Chicago Municipal Code, § 9-12-075 (amended Apr. 26, 2006). See also 625 ILCS 5/11-605(a) (West 2014) ("On a school day *** no person shall drive a motor vehicle at a speed in excess of 20 miles per hour while passing a school zone"). 8 No. 1-15-0520
9. The ESY program provides extended school year services to
students with special needs based on a student's individualized education
program ('IEF') pursuant to federal special education law.
10. At Lane Tech during the 2014 summer session approximately 31
students were enrolled in and attended the virtual learning credit recovery
program.
11. Students in the virtual learning credit recovery program take
online courses to make up credits in order to meet graduation
requirements. Students in this program must physically attend scheduled
classes in the credit recovery computer lab to take the online courses."
¶ 21 In his response, plaintiff did not contest the facts sworn to in the above
affidavit, arguing instead that, "[e]ven if 40 students actually attended classes at
Lane Tech during the summer, and 31 additional students attended the virtual
learning credit recovery program [citations omitted], 71 students constitutes a
very small minority only (1/69%) of Lane Tech's 4,200-student population."
¶ 22 In reply, defendant observed that the Code of Federal Regulations
provides that "[s]chool day means any day including a partial day that children
are in attendance at school for instructional purposes," and that "[s]chool day
has the same meaning for all children in school, including children with and
9 No. 1-15-0520
without disabilities." 34 C.F.R. § 300.11 (2014); 23 Ill. Admin. Code 226.75
(2007) (adopting definition).
¶ 23 III. Trial Court's Dismissal Order
¶ 24 On February 18, 2015, the trial court issued a written dismissal order
which stated in full:
"This matter coming to be heard on defendant's section 2-619 motion to
dismiss, with the court being fully advised in the premises, it is hereby
declared:
(1) For the reasons stated on the record, before a certified court
reporter, defendant's 2-619 motion to dismiss is granted[.]
(2) For the reasons stated on the record, plaintiff's request for leave to
amend is denied.
(3) This order is final and appealable."
¶ 25 At the hearing, the trial court stated: "I do agree with the City on its
interpretation of what the statute means. To the extent that there is an
ambiguity, I think that the legislative history makes quite clear that it's about–
as well as common sense would probably make quite clear, but both make it
clear that it's about protecting school children, and summer school children are
still school children." In response to plaintiff's discussion of statutes which
10 No. 1-15-0520
provide a definition of the school year, the trial court stated: "all those statutes
have a different agenda. They really do. They are about specific educational
requirements. They are about specific things that are not about safety."
¶ 26 The trial court ruled that, since this was a purely legal issue about which
the "DOAH," the Department of Administrative Hearings, did not have
particular expertise, there was no need for plaintiff to have exhausted
administrative remedies.
¶ 27 The City's attorney observed: "the speed limit doesn't change whether it's
a school day or not. The speed limit that was applicable here is applicable all
the time. It is a 30-mile-per-hour speed limit. Plaintiff was going 41 miles per
hour." Even if there is an issue with respect to when the City can or cannot
operate the cameras, he noted that "it doesn't change the conduct of drivers at
all."
¶ 28 Plaintiff's counsel then interjected, asking if he could "hop in on this
issue." When the court agreed, he stated: "The speed is irrelevant to this suit.
*** At issue is *** whether the City had the authority to operate [the cameras]
and issue violations at that particular time. Now, if there was an officer, police
officer, who was present at that time, and he clocked someone going 50 miles
an hour," he could have issued a ticket. Plaintiff's counsel stressed that: "The
11 No. 1-15-0520
issue is whether there should have been an issuance of the speed cameras
because those powers are limited."
¶ 29 Plaintiff's counsel stated that he had made a request in his response, that,
if the trial court ruled that the day in question was a school day, then he should
be allowed to amend his complaint. He sought to amend in order to challenge
the constitutionality of the law on its face on vagueness grounds, because a
driver would not know when the cameras were operating. When the trial court
observed that this issue was not in the briefs, plaintiff stated that it was in a
footnote. However, plaintiff's brief does not request, either in a footnote or in
the text, leave to amend the complaint.
¶ 30 The trial court asked the City's attorney to respond to the issue, and he
stated: "Legislation is only unconstitutionally vague if it does not provide a
person with a reasonable opportunity to know what conduct is prohibited so that
he or she may conform his or her conduct accordingly. Here the 30-mile-per-
hour speed limit was clear."
¶ 31 The trial court denied plaintiff's request to amend, stating that plaintiff
was not "injured by any alleged vagueness, since it's clear he did not conform
his conduct to any possible speed limit, including the 30-mile-an-hour limit."
The trial court also granted defendant's motion to dismiss since neither the
Vehicle Code nor the School Code provided an applicable definition of "school 12 No. 1-15-0520
day," so "the dictionary definition of 'a day in which classes are held in a
primary or secondary school' is a very rational place to start." The trial court
explained:
"To the extent that there is any ambiguity–and I am not at all sure
there is, but to the extent that there is, the legislative history which makes
it clear that this is about promoting safety of school children, and at the
same time trying to not make the cameras operate unnecessarily lengthy
periods of time, does not compel or suggest that the distinction should be
made between the school year, the regular school year, and summer
school.
So I do believe that the City's definition of 'school day' to include a
summer school day is the appropriate definition under the statute and,
therefore, the City was within its home rule powers in enforcing the ASE
cameras during summer school."
¶ 32 On February 19, 2015, plaintiff filed a notice of appeal, and this appeal
followed.
¶ 33 ANALYSIS
¶ 34 Plaintiff appeals the trial court's dismissal order on the ground that the
City was not allowed to operate an ASE camera on June 26, 2014, near Lane
Tech High School, when classes for students with special needs and virtual 13 No. 1-15-0520
learning credit recovery classes were in session, because this day did not qualify
as a school day. For the following reasons, we affirm.
¶ 35 I. Standard of Review
¶ 36 A. Section 2-619 Motion
¶ 37 On this appeal, plaintiff asks us to reverse the trial court's dismissal order,
which was granted pursuant to section 2-619 of the Code of Civil Procedure
(Code). 735 ILCS 5/2-619 (West 2014). "A motion to dismiss, pursuant to
section 2-619 of the Code, admits the legal sufficiency of the plaintiffs'
complaint, but asserts an affirmative defense or other matter that avoids or
defeats plaintiffs' claim." DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006).
¶ 38 When we review a section 2-619 dismissal, our standard of review is de
novo. Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill. 2d 558, 579
(2006); American Service Insurance Co. v. City of Chicago, 404 Ill. App. 3d
769 (2010). De novo review means that the reviewing court performs the same
analysis that a trial judge would perform. A.M. Realty Western L.L.C. v. MSMC
Realty, L.L.C., 2012 IL App (1st) 121183, ¶ 37.
¶ 39 When reviewing a "motion to dismiss under section 2-619, a court must
accept as true all well-pleaded facts in plaintiffs' complaint and all inferences
that can reasonably be drawn in plaintiff's favor." Morr-Fritz, Inc. v.
Blagojevich, 231 Ill. 2d 474, 488 (2008). "In ruling on a motion to dismiss 14 No. 1-15-0520
under section 2-619, the trial court may consider pleadings, depositions, and
affidavits." Raintree Homes, Inc. v. Village of Long Grove, 209 Ill. 2d 248, 262
(2004). "[T]he court must interpret all pleadings and supporting documents in
the light most favorable to the nonmoving party." Melena v. Anheuser-Busch,
Inc., 219 Ill. 2d 135, 141 (2006).
¶ 40 Even if the trial court dismissed on an improper ground, a reviewing
court may affirm the dismissal, if the record supports a proper ground for
dismissal. Raintree, 209 Ill. 2d at 261 (when reviewing a section 2-619
dismissal, we can affirm "on any basis present in the record"); In re Marriage of
Gary, 384 Ill. App. 3d 979, 987 (2008) ("we may affirm on any basis supported
by the record, regardless of whether the trial court based its decision on the
proper ground").
¶ 41 B. Statutory Interpretation
¶ 42 The de novo standard of review also applies because the parties ask us
to interpret the meaning of the phrase "school days" as used in the ASE law, or
section 11-208.8 of the Illinois Vehicle Code (625 ILCS 5/11-208.8 (West
2014) (entitled "Automated speed enforcement systems in safety zones")). The
interpretation of a statute is a question of law that we also review de novo.
People v. Anthony, 2011 IL App (1st) 091528, ¶ 8.
15 No. 1-15-0520
¶ 43 "As we do in every case of statutory interpretation, we look first and
foremost to the language of the statute itself." People v. Wright, 2012 IL App
(1st) 073106, ¶ 79 (citing People v. Cardamone, 232 Ill. 2d 504, 512 (2009)).
"Our primary objective in construing a statute is to give effect to the
legislature's intent" (Wright, 2012 IL App (1st) 073106, ¶ 79 (citing
Cardamone, 232 Ill. 2d at 512)); and "[t]he best indication of that intent is the
language of the statute itself, which must be given its plain and ordinary
meaning." Brunton v. Kruger, 2015 IL 117663, ¶ 24. In construing the plain
language of the statute, we consider the statute in its entirety, "keeping in mind
the subject it addresses and the legislature's apparent objective in enacting it."
Cardamone, 232 Ill. 2d at 512.
¶ 44 If the statutory language is clear, we must apply it, without resort to any
aids of statutory construction. Krohe v. City of Bloomington, 204 Ill. 2d 392,
395 (2003). If, and only if, the statutory language is ambiguous, may we look
to other sources to ascertain the legislature's intent. Krohe, 204 Ill. 2d at 395.
These other sources include primarily the statute's legislative history and
debates. Krohe, 204 Ill. 2d at 398.
¶ 45 II. Threshold Issue
¶ 46 As a threshold matter, the City argues that plaintiff's claim is barred
because he voluntarily paid the ticket and failed to exhaust his administrative 16 No. 1-15-0520
remedies to contest it. However, plaintiff does not contest either that he was
speeding or the amount of the fine for this type of violation. His dispute is not
with the underlying violation or the fine, but with the City's means of
enforcement.
¶ 47 While our supreme court generally requires strict compliance with the
rule requiring exhaustion of administrative remedies, it has recognized several
exceptions. Office of Cook County State's Attorney v. Illinois Local Labor
Relations Board, 166 Ill. 2d 296, 306 (1995); Castaneda v. Illinois Human
Rights Comm'n, 132 Ill. 2d 304, 308 (1989). An aggrieved party may seek
judicial review of an administrative decision without first exhausting
administrative remedies for several reasons, including: "when [1] no issues of
fact are presented or [2] agency expertise is not involved," or "[3] where the
agency's jurisdiction is attacked because it is not authorized by statute."
Castaneda, 132 Ill. 2d at 308-09. See also Office of Cook County State's
Attorney, 166 Ill. 2d at 306. In the case at bar, all three quoted exceptions
apply. First, no issues of fact are presented, since plaintiff does not contest that
he was speeding. Second, the agency's expertise is not involved, since this case
does not require a resolution of whether plaintiff did or did not violate the law.
Third, plaintiff attacks the City's jurisdiction or authority to issue the ticket,
claiming that it was not authorized by statute.
17 No. 1-15-0520
¶ 48 In addition, "[t]he issue before us is one of statutory and case law
interpretation, and therefore it falls within the scope of our particular expertise
and not [the agency's]." Office of Cook County State's Attorney, 166 Ill. 2d at
306. "As we have previously noted in discussing the exhaustion rule and its
exceptions, '[t]he agency's particular expertise is not implicated in statutory
construction.' " Office of Cook County State's Attorney, 166 Ill. 2d at 306-07
(quoting Landfill, Inc. v. Pollution Control Board, 74 Ill. 2d 541, 550 (1978)).
¶ 49 Accordingly, we conclude that the exhaustion doctrine is not a bar to our
consideration of the present dispute. Office of Cook County State's Attorney,
166 Ill. 2d at 307.
¶ 50 III. Two Issues
¶ 51 The case before us presents two distinct issues: whether the schooling of
special needs children qualifies as a school day for purposes of the ASE law;
and whether recovery classes qualify as a school day for purposes of the ASE
law. In the case at bar, 40 students attended an extended school year program
for students with special needs, and another 31 students attended virtual
learning credit recovery classes to make up credits in order to meet graduation
requirements. If either qualifies as a school day, we must affirm the trial court
in the case at bar.
18 No. 1-15-0520
¶ 52 First, we will examine the plain language of the statute. Second, if there
is an ambiguity, we will look to the legislative purpose. Lastly, the parties make
arguments based on the provisions of other codes, which we will examine.
¶ 53 IV. Plain Language
¶ 54 As we observed above, if the language of the statute is clear, we are not
allowed to go further. See Krohe, 204 Ill. 2d at 395.
¶ 55 The Illinois Vehicle Code authorizes the City to utilize ASE cameras to
enforce the speed limit near schools "on school days." 625 ILCS 5/11-208.8(a-
5)(i) (West 2014). On this appeal, plaintiff does not claim either that he was
not speeding or that he was not sufficiently near a school. The dispute concerns
the meaning of the phrase "school days." As noted above, plaintiff argues that
school days should not include: (1) extended year classes for special needs
children; and (2) recovery classes for children seeking to meet graduation
requirements.
¶ 56 The Vehicle Code does not provide a definition of the term. Thus we
must turn to the term's plain and ordinary meaning. As we observed above, our
primary goal in construing a statute is to give effect to the legislature's intent,
and the best indication of that intent are the words of the statute itself, which
must be given their plain and ordinary meaning. Brunton, 2015 IL 117663,
¶ 24; People v. McChriston, 2014 IL 115310, ¶ 15. When a statute does not 19 No. 1-15-0520
define its own terms, a reviewing court may use a dictionary to ascertain the
plain and ordinary meaning of those terms. McChriston, 2014 IL 115310, ¶ 15;
People v. Bingham, 2014 IL 115964, ¶ 55.
¶ 57 While courts and lawyers frequently rely on Black's Law Dictionary to
define terms (e.g., McChriston, 2014 IL 115310, ¶ 17), there is no definition of
school day in that dictionary. Black's Law Dictionary 1373 (8th ed. 2004). In
its brief, the City quotes a number of dictionaries which define the term as a day
on which classes are held, or school is conducted or in session. We will not
quote them all here, but we provide an example from the New Oxford
American Dictionary (3rd ed. 2010)
https://www.ahdictionary.com/word/search.html?q=school+day&submit.x=54&
submit.y=23 (last visited Oct. 16, 2015) which defines "school day" as "a day
on which classes are held in a primary or secondary school." This is the only
definition that this dictionary provides for this term. Accord American Heritage
Dictionary of the English Language,
https://www.ahdictionary.com/word/search.html?q=school+day&submit.x=54&
submit.y=23 (last visited Oct. 16, 2015) (defining "school day" as: "1. A day
on which school is in session; 2. the part of a day during which school is in
session.").
20 No. 1-15-0520
¶ 58 Since classes were held and were in session on June 26, 2014, the plain
and ordinary dictionary meaning of the term shows that it was a school day.
Plaintiff does not argue that there is a definition from another dictionary which
we should employ or that application of these definitions results in a different
conclusion. Instead, he argues, as we discuss in a section below, that we should
turn to other statutory codes, outside the Vehicle Code, for a definition. (See
infra "VI. Provisions of Other Codes.))
¶ 59 V. Statutory Purpose
¶ 60 After a court examines the plain and ordinary meaning of the language,
the rules of statutory construction direct us to consider the statute's legislative
history, if the words still appear ambiguous. Krohe, 204 Ill. 2d at 395, 398.
Although we do not find the language ambiguous, the undisputed purpose of the
statute wipes out any doubt.
¶ 61 The legislative history shows that the legislators' primary purpose in
enacting the ASE law was the safety of the children, and plaintiff does not
argue otherwise in this appeal.
¶ 62 As we noted above, a statute's legislative history and debates can be
valuable construction aides in interpreting an otherwise ambiguous statute.
Krohe, 204 Ill. 2d at 398. When interpreting an ambiguous phrase in a statute,
our supreme court looks especially to the remarks of the bill's sponsor. Krohe, 21 No. 1-15-0520
204 Ill. 2d at 398. See also In re Pension Reform Litigation, 2015 IL 118585,
§ 68 (giving more weight to the remarks of "the chief sponsor of the
legislation"); Julie Q. v. Department of Children & Family Services, 2013 IL
113783, ¶ 31 (quoting the sponsor's remarks when interpreting a statute). The
remarks made immediately prior to passage are particularly important. Poris v.
Lake Holiday Property Owners Ass'n, 2013 IL 113907, ¶¶ 51-53 (quoting the
sponsors' remarks in order to interpret a statute and noting that, following these
remarks, the bill passed).
¶ 63 In the case at bar, the ASE law passed both houses on November 9, 2009.
On that same day, shortly before the final vote, Representative Barbara Flynn
Currie, who was the sponsor of the bill, stated that its purpose was "to protect
children." 97th Ill. Gen. Assem., House Proceedings, Nov. 9, 2011, at 131. She
explained that, "when you have strong enforcement of the speeding laws, guess
what, people slow down." 97th Ill. Gen. Assem., House Proceedings, Nov. 9,
2011, at 131. Currie stated: "This would not apply on nonschool days. So,
holidays, Saturdays, and Sundays are not covered[.]"97th Ill. Gen. Assem.,
House Proceedings, Nov. 9, 2011, at 140. She later repeated that ASE cameras
would operate "only on school days, not on Saturdays, not on Sundays, not on
holidays." 97th Ill. Gen. Assem., House Proceedings, Nov. 9, 2011, at 140. In
the case at bar, the day in question was not a Saturday, Sunday or holiday.
22 No. 1-15-0520
¶ 64 Senator John J. Cullerton, a sponsor of the bill in the Senate, stated:
"We have in Chicago a pedestrian fatality rate that's sixty-eight percent
higher than New York City. And we do lose a number of–young children
in these crashes in the City of Chicago. We have seen in other areas of
this nation where they've had this program, there's a big decrease in the
number of tickets that are issued *** [a]nd as a result, safety ensues."
97th Ill. Gen. Assembly, Senate Proceedings, October 26, 2011, at 61.
¶ 65 The only portion of the legislative history quoted by plaintiff concerns
the limits that the legislature placed on: (1) the location of the ASE cameras, (2)
the amount and use of the fines, and (3) the calibration of the cameras. On
November 9, 2011, Representative Currie stated that, although ASE cameras
provided the City with an opportunity to protect children:
"We do limit the opportunity for the City Council to do that, an eighth of
a mile from schools, an eighth of a mile from parks. We restrict how
revenues can be used. We require frequent calibration using Illinois State
Police standards, but we know all the studies show us that when you have
strong enforcement, when you have strong enforcement of the speeding
laws, guess what, people slow down." 97th Ill. Gen. Assem., House
Proceedings, Nov. 9, 2011, at 131.
Similarly, Representative Currie stated later: 23 No. 1-15-0520
"Representative Currie: [W]hat we have here are limits. We curtail
what they can do, but it may be they want to do a lot less. So, for
example, we say an eighth of a mile of a school or a park …
Representative Eddy: Yeah.
Representative Currie: … they could reduce that further. We say 100,
$50 for violations up to 10 miles above the speed limit, a 100 beyond
that. They could go lower. They could say 25 for the first." 97th Ill.
Gen. Assem., House Proceedings, Nov. 9, 2011, at 133.
¶ 66 These quotes, to which plaintiff draws our attention, do not concern
limiting the definition of school days, and thus are inapposite to our discussion.
¶ 67 In sum, the legislative history shows that the legislators' primary purpose
was to protect children, and that they intended to limit the protection to days
when children were in school and to exclude Saturdays, Sundays and holidays.
This history bolsters our conclusion that Thursday, June 26, 2014, when both
special needs children and summer school children were in school, was a school
day.
¶ 68 VI. Provisions of Other Codes
24 No. 1-15-0520
¶ 69 Plaintiff argues that we should define school day for purposes of the
Vehicle Code, based on information provided by the Chicago Public Schools
and on provisions in other codes.
¶ 70 Plaintiff argues that the Chicago Public School's Calendar for 2013-14
shows that Thursday, June 26, 2014, was not a school day. However, the
calendar specifically lists "[d]ays of non-attendance for students," and June 26
was not one of these days. Since June 26 was not a "non-attendance" day, then
students were in attendance, and it was a school day for them. 4
¶ 71 Plaintiff also cites other codes. We are required to look at a statute in its
entirety when interpreting one of its terms. Cardamone, 232 Ill. 2d at 512 ("we
consider the statute in its entirety"). However, while we may turn to other
codes, we should only do so when the codes share similar goals and related
subjects. See Carter v. SSC Odin Operating Co., 2012 IL 113204, ¶ 37 (a
statute should be "construed in conjunction with other statutes touching on the
same or related subjects *** considering the reason and necessity for the law,
the evils to be remedied, and the objects and purposes to be obtained"); People
v. Steppan, 105 Ill. 2d 310, 321 (1985) ("Because the statutes under
consideration have different goals and purposes," they need not be compared);
4 The 2013-14 calendar did not explain that the attendance days in the summer were for summer school, which was later noted in the 2014-15 calendar. 25 No. 1-15-0520
People v. Williams, 376 Ill. App. 3d 875, 892 (2007) (considering "similar
statutes").
¶ 72 In support of his argument, plaintiff cites the definition of "a legal school
day" in the Illinois Administrative Code, which requires that 50 percent or more
of a school district's students must be in attendance. 23 Ill. Admin. Code
1.420(f)(3), amended at 35 Ill. Reg. 2230 (eff. Jan. 20, 2011). However, this
definition is directed solely to school districts for the "purpose of claiming
general State financial aid." 23 Ill. Admin. Code § 1.420(f), amended at 35 Ill.
Reg. 2230 (eff. Jan. 20, 2011). The section quoted by plaintiff states that it
defines "a legal school day, which is eligible to be counted for General State
Aid *** during a work stoppage." (Emphasis added.) 23 Ill. Admin. Code
1.420(f)(3), amended at 35 Ill. Reg. 2230 (eff. Jan. 20, 2011). The purpose of
the ASE law before us has nothing to do with calculating State financial aid by
a school district during a work stoppage and, thus, there is no reason for the
definitions to carry over. JPMorgan Chase Bank, N.A. v. Earth Foods, Inc., 238
Ill. 2d 455, 470 (2010) (it is proper to compare statutes when they "relat[e] to
the same subject matter").
¶ 73 Plaintiff also cites a number of other provisions, such as section 10-19 of
the School Code. 105 ILCS 5/10-19 (West 2012). This section authorizes
school boards to establish "experimental educational programs, including but
26 No. 1-15-0520
not limited to programs for self-directed learning," such as the virtual learning
credit recovery program occurring on June 26, 2014, at Lane Tech, in which
students took online courses to make up credits in order to meet graduation
requirements. See 105 ILCS 5/10-19 (West 2012). This section specifically
provides that these programs "shall be considered to comply with the
requirements of this Section as respects numbers of days of actual pupil
attendance." 105 ILCS 5/10-19 (West 2012). Thus, this section does not
support plaintiff's argument. See also 105 ILCS 5/14-13.01(h) (West 2014)
(providing for State reimbursement to school districts for special education for
up to "235 school days").
¶ 74 In response to plaintiff's citation of other codes, the City points us to a
different code, namely, the Code of Federal Regulations. Federal regulation
requires a State to provide "a free appropriate public education," or FAPE, "to
all children residing in the State *** including children with disabilities." 34
C.F.R. § 300.101(a) (2014). "Each State must ensure that FAPE is available to
any individual child with a disability who needs special education[.]" 34 C.F.R.
§ 300.101(c)(1) (2014). In order to satisfy this requirement, "[e]xtended school
year services," such as those being provided at Lane Tech, must be "available as
necessary." 34 C.F.R. § 300.106(a) (2014).
27 No. 1-15-0520
¶ 75 Illinois law requires each school district to comply with all applicable
federal regulations, and it specifically demands compliance with federal
regulations for "the provision of extended school year services." 23 Ill. Admin.
Code 226.710(a), (b)(7) (2007). See also 105 ILCS 5/14-8.02(a) (West 2014)
(FAPE must "be available to all children with disabilities).
¶ 76 For the purposes of special education classes, the Code of Federal
Regulations defines a "school day" as follows:
"(1) School day means any day, including a partial day that children
are in attendance at school for instructional purposes.
(2) School day has the same meaning for all children in school,
including children with and without disabilities." 34 C.F.R. § 300.11(c)
(1), (2) (2014).
Illinois adopted this definition in its Administrative Code, so the definition is a
part of Illinois as well as federal law. 23 Ill. Admin. Code 226.75 (2007).
Similar to the dictionary definitions, a school day in the above-quoted definition
means a day that "children are in attendance at school for instructional
purposes," and it specifically includes children with disabilities, such as the
children who were in school on June 26, 2014, at Lane Tech. See 34 C.F.R.
§ 300.11(c)(1), (2) (2014); see also 105 ILCS 5/14-13.01(h) (West 2014)
28 No. 1-15-0520
(providing for State reimbursement to school districts for special education for
¶ 77 Thus, the schooling of special needs children qualifies as a school day for
purposes of the ASE law. Since special needs children were in school on June
26, 2014, at Lane Tech, we need not consider whether recovery classes also
qualify as school days.
¶ 78 VII. Leave to Amend
¶ 79 In a one-paragraph argument in his brief, plaintiff asks us, in the
alternative, to find that the trial court abused its discretion by denying him leave
to amend his complaint.
¶ 80 When ruling on a motion to amend a complaint, the trial court enjoys
broad discretion. Ahmend v. Pickwick Place Owners' Ass'n, 385 Ill. App. 3d
874, 881 (2008) (citing Loyola Academy v. S & S Roof Maintenance, Inc., 146
Ill. 2d 263, 273-74 (1992)). A reviewing court will not reverse a trial court's
denial of a motion for leave to amend unless there has been a manifest abuse of
that discretion. Ahmend, 385 Ill. App. 3d at 881 (citing Loyola Academy, 146
Ill. 2d at 273-74). In considering whether the trial court abused its discretion, a
reviewing court must consider whether the proposed amendment would have
cured the defective pleading. Ahmend, 385 Ill. App. 3d at 881 (citing Loyola
Academy, 146 Ill. 2d at 273). "If the amendment would not have cured a defect 29 No. 1-15-0520
in the pleading," then the trial court did not abuse its discretion in denying it.
Watkins v. Office of State Appellate Defender, 2012 IL App (1st) 111756, ¶ 34.
¶ 81 Plaintiff sought to add a count challenging the Illinois Vehicle Code
and the Municipal Code of Chicago as unconstitutionally vague.
¶ 82 A defendant can challenge a statute as unconstitutionally vague in two
ways: (1) on the statute's face; or (2) as the statute is applied to defendant's
actions. People v. Einoder, 209 Ill. 2d 443, 448 (2004). A defendant may not
challenge the facial vagueness of a statute that does not implicate first
amendment freedoms unless the statute is incapable of any valid application.
People v. Izzo, 195 Ill. 2d 109, 112 (2001). In the case at bar, plaintiff has not
argued that the statute, as written, is incapable of any valid application, but
rather he challenges the City's interpretation and application of the term "school
days." See also Schacter v. City of Chicago, 2011 IL App (1st) 103582, ¶ 84
(the plaintiff had no standing to make a facial challenge to municipal
ordinances when his conduct clearly fell within the category of prohibited
conduct).
¶ 83 The City argues on appeal that the trial court correctly found that plaintiff
lacked standing to bring a vagueness claim and, thus, the trial court did not
abuse its discretion by denying the proposed amendment.
30 No. 1-15-0520
¶ 84 The purpose of the standing doctrine is to ensure that courts are deciding
actual, specific controversies and not abstract ones. In re M.I., 2013 IL 113776,
¶ 32. If a person cannot demonstrate that a statute was applied
unconstitutionally to himself, then he may not challenge the statute on the
ground that " 'it might conceivably be applied unconstitutionally in some
hypothetical case' " against someone else. In re M.I., 2013 IL 113776, ¶ 32
(quoting People v. Wisselead, 108 Ill. 2d 389, 397 (1985)).
¶ 85 " '[A] statute does not violate due process clauses of the United States or
Illinois constitutions, on grounds of vagueness, if the duty imposed by the
statute is prescribed in terms definite enough to serve as a guide to those who
must comply with it.' " Fagiano v. Police Board of Chicago, 98 Ill. 2d 277, 282
(1983) (quoting Chastek v. Anderson, 83 Ill. 2d 502, 507 (1981)). "A
vagueness challenge is a due process challenge, examining whether a statute ' "
'give[s] a person of ordinary intelligence a reasonable opportunity to know what
is prohibited, so that he may act accordingly. [Citations.] ' " ' "People v. Greco,
204 Ill. 2d 400, 415-16 (2003). See also People v. Einoder, 209 Ill. 2d 443, 450
(2004) (due process requires a statute to provide a reasonable opportunity to
know what is prohibited, so that a citizen knows how to act legally). Thus, a
person may challenge a law when the law is so vague that he does not know
31 No. 1-15-0520
how to act. Nowhere does the law provide a citizen with the right to challenge a
law because he does not know when he is most likely to be caught.
¶ 86 Plaintiff lacks standing to bring a vagueness challenge, since the law
governing his behavior was the same whether the ASE cameras were operating
or not. Thus, the trial court did not abuse its discretion in denying his request
during the dismissal hearing to amend his complaint.
¶ 87 CONCLUSION
¶ 88 For the foregoing reasons, we affirm the trial court's grant of the City's
motion to dismiss and its denial of plaintiff's request for leave to amend.
¶ 89 Affirmed.