Murphy v. City of Markham

2024 IL App (1st) 232241-U

• Court: Appellate Court of Illinois
• Decided: October 30, 2024
• Docket: 1-23-2241
• Status: Unpublished

Opinion

2024 IL App (1st) 232241-U

No. 1-23-2241

Order filed October 30, 2024

THIRD DIVISION

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

KAREN M. MURPHY AND MARK KMIECIK ON ) Appeal from the BEHALF OF THEMSELVES AND ALL OTHERS ) Circuit Court of SIMILARLY SITUATED, ) Cook County. ) Plaintiffs-Appellants, ) ) v. ) 17 CH 14834 ) THE CITY OF MARKHAM, ) Honorable ) Caroline K. Moreland, Defendant-Appellee. ) Judge Presiding.

JUSTICE MARTIN delivered the judgment of the court. Presiding Justice Lampkin and Justice D.B. Walker concurred in the judgment.

ORDER

¶1 Held: We affirm the circuit court’s order denying plaintiffs’ motion for summary judgment and granting summary judgment in favor of the City of Markham.

¶2 This appeal arises from an amended class-action complaint filed by plaintiffs Mark J.

Kmiecik and Karen M. Murphy against the City of Markham, Illinois (Markham). The certified

class is composed of vehicle owners who, from June 2017 through November 2017, received

red-light tickets issued by Markham’s automated traffic law enforcement system, commonly No. 1-23-2241

referred to as a red-light camera program.

¶3 Plaintiffs alleged that the tickets were void because they were issued during a period when

a link on Markham’s municipal website was inoperable. The link at issue allows the public to

access information regarding Markham’s red-light camera program. Plaintiffs alleged that during

the pertinent time, this link was inoperable, which prevented the public from accessing certain

online notice and reporting requirements contained in the Illinois Vehicle Code (625 ILCS 5/1-

100 et seq. (West 2020)).

¶4 The issue was eventually submitted to the circuit court of Cook County on cross-motions

for summary judgment. The court granted Markham’s motion for summary judgment and denied

the plaintiffs’ motion. This appeal followed, and for the reasons set forth below, we affirm. 1

¶5 I. BACKGROUND

¶6 In July 2003, the City of Chicago, through its home rule authority, enacted an ordinance

under the Chicago Municipal Code (Chicago Municipal Code §§ 9-102-010 to 9-102-070 (added

July 9, 2003)), which established a red-light camera program. See Kennedy v. City of Chicago,

2022 IL App (1st) 210492, ¶ 3; Kata v. City of Chicago, 2018 IL App (1st) 162075-U, ¶ 6; Keating

v. City of Chicago, 2013 IL App (1st) 112559-U, ¶ 2 “The red light camera program uses electronic

monitoring devices to detect and record images of vehicles caught in an intersection in violation

of a red light traffic signal.” Keating, 2013 IL App (1st) 112559-U, ¶ 2.

¶7 Following the City of Chicago’s implementation of its red-light camera program, the

Illinois General Assembly enacted Public Act 94-795 (Pub. Act 94-795, eff. May 22, 2006), an

enabling statute which authorized red-light camera programs in eight Illinois counties (625 ILCS

In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this 1

appeal has been resolved without oral argument upon entry of a separate written order.

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5/11-208.6(m) (West 2020)), including Cook County.

¶8 Relying on this enabling legislation, Markham, which is located in Cook County, enacted

its own ordinance in 2007 authorizing the installation and operation of red-light cameras at certain

intersections within its city limits. See Markham, IL., Code ¶ 72.15 (2007). Red-light cameras

were installed at three intersections: 159th Street and Dixie Highway; 159th Street and Kedzie

Avenue; and 159th Street and Pulaski Avenue.

¶9 The statutes relevant to the resolution of this appeal are subsections (k-3) and (k-7) of

section 11-208.6 of the Illinois Vehicle Code. 625 ILCS 5/11-208.6 (k-3), (k-7) (West 2020).

¶ 10 Subsection (k-3) provides that municipalities and counties having one or more intersections

equipped with red-light cameras must provide notice to drivers by posting the locations of the

intersections on the website of the municipality or county. Id. subsection (k-3).

¶ 11 Subsection (k-7) provides that municipalities or counties which install and operate a red-

light camera system:

“shall conduct a statistical analysis to assess the safety impact of each *** system at an

intersection following installation of the system and every 2 years thereafter. *** Each

statistical analysis required by this subsection (k-7) shall be made available to the public

and shall be published on the website of the municipality or county.” Id. § (k-7).

¶ 12 To comply with subsections (k-3) and (k-7), Markham added a link to its website

(cityofmarkham.net) which allows the public to access information regarding the locations of

intersections equipped with red-light cameras and the statistical analysis results of each

intersection.

¶ 13 In April 2016, plaintiff Karen M. Murphy received a violation notice based on images from

the red-light camera located at the intersection of 159th Street and Pulaski Road. Murphy paid the

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$100 fine without contest.

¶ 14 Plaintiff Mark J. Kmiecik received a violation notice dated June 5, 2017, based on red-light

camera images from the same intersection. Kmiecik claimed that after he received the notice, he

visited Markham’s website to determine the location of other intersections with red-light cameras.

Kmiecik visited the website on June 12, 13, and 19, 2017, and each time, received an error message

stating “Apologies, but the page you’re looking for can’t be found.” Kmiecik paid the $100 fine

by check on June 19, 2017, marking the payment stub as “pay under protest.”

¶ 15 Kmiecik claimed that either he or his attorney visited the website on June 20, July 10, 24,

and 27, August 10 and 21, and October 10 and 11, 2017. Each time they tried to access the website

they received the same error message. By November 15, 2017, Markham seemed to have resolved

the website error.

¶ 16 On September 7, 2018, plaintiffs filed a two-count amended class action complaint against

Markham in the circuit court of Cook County. Count I sought a declaratory judgment that

automated red-light tickets issued from June 2017 through November 2017 were void. Plaintiffs

alleged that the tickets were void because the inoperable website link failed to comply with

subsection (k-3), since the public was unable to locate intersections with red-light cameras, and

subsection (k-7), where the public was unable to access statistical analysis results. Count II

asserted a claim for unjust enrichment based on Markham’s collection of fines for the alleged void

automated red-light tickets issued during the relevant six-month period.

¶ 17 The parties eventually filed cross-motions for summary judgment. In considering the

cross-motions, the court sought to determine whether the notice requirements of subsection (k-3)

and the reporting requirements of subsection (k-7), were mandatory provisions requiring strict

compliance, or directory requiring only substantial compliance.

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¶ 18 The court concluded that subsection (k-3) was a mandatory provision. However, the court

went on to find that the website’s failure to strictly comply with this provision did not render the

automated red-light tickets void. The court found that the website substantially complied with the

purpose of subsection (k-3), which the court determined was “to ensure that drivers are able to

know the location of red light cameras through online notice.” The court determined that the

website was only temporarily inoperable and that plaintiffs failed to demonstrate they were

prejudiced by the temporary outage.

¶ 19 Conversely, the court found that subsection (k-7) was a directory provision whose purpose

was “to promote road safety, particularly at traffic-light intersections.” The court concluded that

the website substantially complied with the purpose of subsection (k-7) and that the “[p]laintiffs

neither allege nor show any specific prejudice resulting from the website outage that caused the

statistical analysis to become temporarily unavailable.”

¶ 20 The court denied the plaintiffs’ motion for summary judgment and granted summary

judgment in favor of Markham. This timely appeal followed.

¶ 21 II. ANALYSIS

¶ 22 A. Standards of Review

¶ 23 On appeal, plaintiffs challenge both the circuit court’s grant of summary judgment in favor

of Markham and the denial of their cross-motion. “The purpose of summary judgment is to

determine whether a genuine issue of material fact exists that would require a trial.” Hodges v. St.

Clair County, 263 Ill. App. 3d 490, 492 (1994). Summary judgment is appropriate where “the

pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there

is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a

matter of law.” 735 ILC 5/2-1005(c) (West 2012). “When parties file cross-motions for summary

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judgment, they mutually agree that there are no genuine issues of material fact and that the case

may be resolved as a matter of law.” Oswald v. Hamer, 2018 IL 122203, ¶ 9. This case involves

issues of statutory construction. “Statutory construction presents questions of law that are

appropriate for summary judgment.” Id. “Issues involving statutory construction and summary

judgment rulings are reviewed de novo.” Id.

¶ 24 Here, as they did below, plaintiffs argue on appeal that any automated red-light tickets

issued from June 2017 through November 2017 were void because they were issued when the link

on Markham’s website, which allows the public to access information regarding its red-light

camera program, was inoperable. They contend that the inoperable website link prevented the

public from accessing the locations of intersections with red-light cameras and online statistical

analysis results, as required by subsections (k-3) and (k-7) of section 11-208.6 of the Illinois

Vehicle Code. Plaintiffs assert that the online-posting requirements of subsections (k-3) and (k-7)

are mandatory requirements, with which Markham was required to strictly comply.

¶ 25 B. Mandatory Versus Directory

¶ 26 At issue is whether the notice requirements of subsection (k-3) and the reporting

requirements of subsection (k-7) are mandatory provisions requiring strict compliance, or directory

provisions requiring only substantial compliance.

¶ 27 Our courts have employed a mandatory/directory analysis to assist in making this

determination. People v. Grant, 2022 IL 126824, ¶ 30. “ ‘A mandatory provision and a directory

provision are both couched in obligatory language, but they differ in that noncompliance with a

mandatory provision vitiates the governmental action, whereas noncompliance with a directory

provision has no such effect.’ ” In re M.I., 2011 IL App (1st) 100865, ¶ 47 (quoting People v. Four

Thousand Eight Hundred Fifty Dollars ($4,850) United States Currency, 2011 IL App (4th)

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100528, ¶ 24). Whenever the mandatory/directory dichotomy is at issue, obligatory words such as

“shall” are not determinative. People v. Robinson, 217 Ill. 2d 43, 54 (2005).

¶ 28 “Whether a statutory command is mandatory or directory is a question of statutory

construction, which we review de novo.” Robinson, 217 Ill. 2d at 54. “The answer is a matter of

legislative intent.” Id. “The drafters’ intent is best indicated by the language of a statute or rule,

given its plain and ordinary meaning.” People v. Geiler, 2016 IL 119095, ¶ 17. “ ‘ In determining

the plain meaning of statutory terms, we consider the statute in its entirety, keeping in mind the

subject it addresses and the apparent intent of the legislature in enacting it.’ ” In re M.I., 2013 IL

113776, ¶ 15 (quoting People v. Perry, 224 Ill. 2d 312, 323 (2007)).

¶ 29 “Statutes are mandatory when the legislative intent dictates a particular consequence for

failure to comply with the provision.” In re M.I., 2011 IL App (1st) 100865, ¶ 47. “ ‘In the absence

of such intent the statute is directory and no particular consequence flows from noncompliance.

That is not to say, however, that there are no consequences. A directory reading acknowledges

only that no specific consequence is triggered by the failure to comply with the statute.’ ”

(Emphasis omitted.) Id. (quoting People v, Delvillar, 235 Ill. 2d 507, 515 (2009)).

¶ 30 “We presume that procedural commands to governmental officials are directory.” Geiler,

2016 IL 119095, ¶ 18. This “presumption can be overcome under either of two conditions: (1)

when there is negative language prohibiting further action in the case of noncompliance or (2)

when the right the provision is designed to protect would generally be injured under a directory

reading.” Lakewood Nursing & Rehabilitation Center, LLC v. Department of Public Health, 2019

IL 124019, ¶ 29.

¶ 31 1. The Negative Language Condition

¶ 32 As to the first condition, we note that neither subsection (k-3) nor subsection (k-7) contains

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negative language prohibiting further action or specific consequences for noncompliance.

¶ 33 Subsection (k-3) provides that “[a] municipality or county that has one or more

intersections equipped with an automated traffic law enforcement system must provide notice to

drivers by posting the locations of automated traffic law systems on the municipality or county

website.” 625 ILCS 5/11-208.6 (k-3) (West 2020).

¶ 34 Subsection (k-7) provides that municipalities or counties which install and operate a

red-light camera system:

“shall conduct a statistical analysis to assess the safety impact of each *** system at an

intersection following installation of the system and every 2 years thereafter. *** Each

statistical analysis required by this subsection (k-7) shall be made available to the public

and shall be published on the website of the municipality or county.” 625 ILCS 5/11-208.6

(k-7) (West 2020).

¶ 35 Neither subsection prohibits Markham from issuing drivers automated red-light tickets nor

provides specific consequences for the website’s noncompliance with these subsections. There is

no statutory language in either subsection (k-3) nor subsection (k-7) which tells us that government

action is rendered a nullity by a website’s failure to comply with these subsections. Consequently,

the negative language condition does not apply to overcome the presumption of directory

constructions of subsections (k-3) and (k-7) of section 11-208.6 of the Illinois Vehicle Code.

¶ 36 2. The Injury to Protected Rights Condition

¶ 37 We next consider whether the second condition overcomes the presumption of a directory

construction of subsections (k-3) and (k-7). In this analysis, “courts do not look to whether any

right of any person or entity will be adversely affected by a directory interpretation. Rather, we

look to whether the right the statute is designed to protect will be injured by a directory

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construction.” (Emphasis in original.) Lakewood Nursing, 2019 IL 124019, ¶ 44.

¶ 38 With respect to subsection (k-3), plaintiffs contend that the right of the public to have online

notice of the locations of intersections equipped with red-light cameras would be injured if this

subsection was given a directory reading. In support of this contention, Kmiecik claims that he

was prejudiced by the website’s noncompliance with subsection (k-3) because each time he visited

the website, he was unable to access online notice of the locations of intersections equipped with

red-light cameras.

¶ 39 Kmiecik, however, fails to demonstrate exactly how he suffered prejudice due to his

inability to access the locations of these intersections. He has not alleged or demonstrated that the

website’s outage affected his ability to obey normal traffic regulations, such as stopping at red

lights.

¶ 40 One of the main objectives of a red-light camera program is to promote public safety on

roadways by deterring drivers from disobeying the traffic laws and running red lights. See, e.g.,

Kilper v. City of Arnold, Mo., 2009 WL 2208404, at *17 (E.D. Mo. 2009) (“the use of red light

cameras and related proceedings are rationally connected to the valid public safety purpose of

reducing traffic accidents at traffic light intersections.”) This factor strongly weighs in favor of

construing subsection (k-3) as a directory provision.

¶ 41 We believe that one of the primary purposes of Markham’s red-light camera program

would be undermined if subsection (k-3) was given a mandatory construction because it would

provide drivers who run red-lights with a technical basis for avoiding an automated red-light ticket.

We doubt our legislature intended such a possibility. Consequently, we find that the right of the

public to assess the locations of intersections equipped with red-light cameras would not be injured

if subsection (k-3) was given a directory construction.

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¶ 42 As to subsection (k-7), Kmiecik fails to provide evidence of any injury or prejudice

suffered by him or any class member resulting from the inability to access online statistical

analysis. Thus, the presumption in favor of a directory reading of subsection (k-7) has not been

overcome.

¶ 43 In sum, the legal presumption that subsections (k-3) and (k-7) of section 11-208.6 of the

Illinois Vehicle Code are directory provisions, has not been overcome. As a result, plaintiffs’

argument that the automated red-light tickets they received are void, fails as a matter of law, as

does their claim for unjust enrichment. See, e.g., Martis v. Grinnell Mutual Reinsurance Co., 388

Ill. App. 3d 1017, 1024-25 (2009) (when an underlying claim of unlawful or improper conduct is

deficient, then a claim for unjust enrichment should be dismissed).

¶ 44 In light of our disposition of this appeal, we need not and do not consider Markham’s

alternative arguments that plaintiffs’ claims are barred both by the doctrine of res judicata and by

their failure to exhaust administrative remedies. 2

¶ 45 III. CONCLUSION

¶ 46 For the foregoing reasons, we affirm the circuit court’s order denying plaintiffs’ motion

for summary judgment and granting summary judgment in favor of Markham.

¶ 47 Affirmed.

Markham failed to argue before the trial court that plaintiffs’ claims are barred by their failure to exhaust 2

administrative remedies. 10