Nance v. City of Burbank

2020 IL App (1st) 191592-U

• Court: Appellate Court of Illinois
• Decided: March 16, 2020
• Docket: 1-19-1592
• Status: Unpublished

Opinion

2020 IL App (1st) 191592 No. 1-19-1592 Order filed March 16, 2020 First 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 DISTRICT

____________________________________________________________________________

FRED L. NANCE, JR. ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellant, ) ) v. ) No. 2019 M5 2522 ) CITY OF BURBANK, ILLINOIS ) The Honorable ADMINISTRATIVE HEARINGS, ) Patrick T. Rogers, ) Judge, presiding. Defendants-Appellees. ____________________________________________________________________________

JUSTICE HYMAN delivered the judgment of the court. Justices Pierce and Walker concurred in the judgment.

ORDER

¶1 Held: Hearing officer’s finding of liability for red light camera citation affirmed.

¶2 Fred L. Nance, Jr., represents himself on this appeal from an order of the Circuit Court

affirming the decision of the City of Burbank administrative hearing officer finding him liable for

a red light camera violation. Nance argues his due process rights were violated because the City

failed to file a complete and certified record of the administrative hearing with the trial court.

Nance further contends the administrative hearing officer violated his due process rights by (i) 1-19-1592

failing to provide her full name during the administrative hearing; (ii) failing to put witnesses under

oath, and (iii) exhibiting bias against him. Nance also raises claims of error in the trial court and

asserts the red light cameras constitute improper revenue-generating schemes. We reject Nance’s

contention that his due process rights were violated by the administrative hearing officer or when

the City provided the trial court with the administrative record after the hearing. Nance’s other

claims either have no merit or have been waived. Thus, we affirm.

¶3 Background

¶4 On February 4, 2019, the City of Burbank issued a Notice of Red Light Violation to Fred

L. Nance, Jr. The notice alleged that on January 15, 2019, a vehicle registered to Nance ran a red

light at the corner of 79th Street and Harlem Avenue. The notice included three photographs

depicting the violation and noted that video footage of the violation could be viewed on a website.

The notice required Nance to pay a $100 fine. Nance contested the notice, in writing, and the City

held an administrative hearing. At the hearing, the administrative hearing officer viewed the video

footage and determined that Nance slowed but failed to come to a complete stop before making a

right turn in violation of section 5/11-306(c)(3) of the Illinois Vehicle Code. 625 ILCS 5/11-306

(West 2018). Nance argued this section does not state how many seconds a vehicle needs to stop

at the red light. The administrative hearing officer agreed but found that Nance’s vehicle never

came to a complete stop and upheld the violation.

¶5 Nance filed a pro se complaint for administrative review in the circuit court. The City

provided the trial court with a copy of the notice of the violation, the video of the violation, and

the audio of the administrative hearing. The trial court affirmed the decision of the administrative

hearing officer but stayed imposing the fine pending Nance’s appeal.

¶6 Analysis

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¶7 Standard of Review

¶8 We review the administrative decision rather than the trial court’s decision. Wortham v.

City of Chicago Department of Administrative Hearings, 2015 IL App (1st) 131735, ¶ 13. “The

standard of review, ‘which determines the degree of deference given to the agency’s decision,’

turns on whether the issue presented is a question of fact, a question of law, or a mixed question

of law and fact.” Comprehensive Community Solutions, Inc. v. Rockford School District No. 205,

216 Ill. 2d 455, 471 (2005) (quoting AFM Messenger Service, Inc. v. Department of Employment

Security, 198 Ill. 2d 380, 390 (2001)). Factual determinations from the administrative agency are

considered prima facie true and correct. Id. We do not reweigh the evidence before the agency;

instead, we determine whether the agency’s decision is against the manifest weight of the evidence.

Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 88, (1992).

¶9 “A mixed question of law and fact asks the legal effect of a given set of facts.”

Comprehensive Community, 216 Ill.2d at 472. Stated another way, a mixed question occurs when

the historical facts are admitted or established, the rule of law is undisputed, and the issue is

whether the facts satisfy the statutory standard, or whether the rule of law as applied to the

established facts is or is not violated. AFM Messenger, 198 Ill. 2d at 391. We review a mixed

question of law and fact under the clearly erroneous standard. Comprehensive Community, 216 Ill.

2d at 472. Nance’s primary contention—that the City violated his due process rights by failing to

provide a sufficient record to the trial court—involves a mixed question of law and fact, to which

we apply the clearly erroneous standard of review.

¶ 10 Sufficiency of the Administrative Record

¶ 11 Nance does not contest the administrative hearing officer’s finding that he violated section

5/11-306(c)(3) of the Illinois Vehicle Code by making a right turn at a red light without coming to

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a complete stop. (We have viewed the video and conclude that the hearing officer’s finding of fact

is not against the manifest weight of the evidence.) Instead, Nance argues a violation of his due

process rights because the City failed to provide the trial court a sufficient record from the

administrative proceeding. Specifically, Nance contends (i) the administrative record the City

provided to the trial court was not certified and (ii) the record was not complete, because it did not

include a report from the red light technician or the police officer who reviewed the technician’s

report.

¶ 12 An administrative agency has a duty to provide the trial court with a sufficiently complete

record of proceedings as its answer to a complaint so that trial court may properly perform its

judicial review function. Mueller v. Board of Fire and Police Commissioners of Village of Lake

Zurich, 267 Ill. App. 3d 726, 733 (1994). Section 3-108(b) of the Illinois Administrative Review

Law requires the municipality that conducted the hearing to file an answer with the circuit court

consisting “of the original or a certified copy of the entire record of the proceedings under review,

including such evidence as may have been heard by it ***.” 735 ILCS 5/3-108(b) (West 2018).

¶ 13 The City states it provided the trial court with a copy of the citation notice, the original

audio recording of the administrative hearing, and a copy of the video of Nance’s alleged red light

violation. It does not assert it provided a “certified copy of the entire record of proceedings.”

Nonetheless, the City’s failure to provide a certified copy of the administrative record would not

constitute grounds for reversal absent a showing of prejudice. Quinlan v. Board of Fire and Police

Commissioners of City of Harrisburg, 27 Ill. App. 3d 286 (1975) (police board’s failure to provide

trial court with city’s rules and regulations of police department did not prejudice police chief

against whom disciplinary action was being taken where city ordinance proscribing conduct

unbecoming a police officer provided sufficient basis for review). The documents the City

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provided to the trial court sufficed for purposes of the court to review the hearing officer’s decision.

Nance does not contend the video or photographs were doctored or that they do not depict the red

light violation involving his vehicle. Because the City provided the trial court with the documents

needed to review the hearing officer’s decision, Nance was not prejudiced by the City’s failure to

provide a certified copy of the administrative record.

¶ 14 As for the other alleged errors, Nance cites no section of the Illinois Vehicle Code that

requires the City to provide the trial court a written copy of the report from the red light technician

or a report from the police officer who reviewed the technician’s findings, nor have we found one.

The City provided the trial court with a copy of the red light citation, an audio recording of the

administrative hearing, as well as the video evidence of Nance’s violation, which were part of the

administrative record. A report from the red light technician or the police officer who confirmed

the violation were not part of the administrative record, and no rule or law requires the City provide

them to the trial court.

¶ 15 Other Due Process Claims

¶ 16 Nance alleges the administrative hearing officer made other errors that violated his due

process rights. First, he suggests the hearing officer was not a licensed attorney and misrepresented

her name at the hearing by not providing her full name.

¶ 17 We may take judicial notice of information on a public website. People v. Clark, 406 Ill.

App. 3d 622, 633-34 (2010). The website of the Attorney Registration and Disciplinary

Commission shows that the hearing officer became an Illinois licensed attorney in 2004 and is

currently registered as an attorney under the name Robyn Molaro King. Use of Molaro rather than

Molaro King was not a misrepresentation for purpose of the hearing. In any event, Nance does not

explain how the hearing officer’s identification of herself violated Nance’s due process rights.

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¶ 18 Nance also argues Molaro violated his due process rights by not putting witnesses under

oath. For support Nance relies on section 11-208.3(b)(4) of the Code, which states that “the person

conducting the hearing on behalf of the traffic compliance administrator shall be empowered to

administer oaths.” 625 ILCS 11-208.3(b)(4) (West 2018.) The statute’s plain language empowers

but does not require the hearing officer to administer oaths. And, any suggestion that Nance was

prejudiced by the lack of an oath has no merit, as he was the only witness.

¶ 19 Nance raises several issues for the first time on appeal. Arguments raised for the first time

on appeal are waived. Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill.

2d 200, 212-13 (2008). Thus, they are waived.

¶ 20 Claims involving the Trial Court

¶ 21 Nance raises several allegations contending the trial court abused its power and violated

his due process and first amendment rights in its handling of his motion for substitution of judge.

As noted, in administrative review cases we review the decision of the administrative hearing

officer rather than the proceedings in the circuit court. Wortham, 2015 IL App (1st) 131735, ¶ 13.

Thus, we will not address any alleged errors by the trial court.

¶ 22 Red Light Camera System

¶ 23 Nance argues the red light camera system constitutes an improper revenue generating

scheme for the City. Nance has waived this claim by failing to raise it in the administrative hearing.

Cinkus, 228 Ill. 2d 212-13. Further, in Fischetti v. Village of Schaumburg, 2012 IL App (1st)

111008, ¶ 16, this court held that no fundamental rights were implicated by a municipality

imposing a $100 traffic fine for the running of a red light. We agree with Fischetti’s analysis and

will not revisit it.

¶ 24 Affirmed.

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