2022 IL App (1st) 211286 First District Third Division September 7, 2022
No. 1-21-1286 ) AARON POTEK, ADINA KLEIN, STEPHEN ) MICHELINI, and LUKE SEQUEIRA, Individually ) Appeal from the Circuit Court and on Behalf of All Others Similarly Situated, ) of Cook County. ) Plaintiffs-Appellants, ) No. 17 CH 10507 ) v. ) The Honorable ) Pamela McLean Meyerson, THE CITY OF CHICAGO, ) Judge Presiding. ) Defendant-Appellee. ) )
JUSTICE REYES delivered the judgment of the court, with opinion. Presiding Justice Lampkin and Justice Rochford concurred in the judgment and opinion.
OPINION
¶1 Between 2012 and 2014, plaintiffs Rabbi Aaron Potek, Adina Klein, Stephen Michelini,
and Luke Sequeira all received “Administrative Notice[s] of Ordinance Violation[s]”
(violation notices) from the City of Chicago (City) for using cell phones while driving, a
violation of a City ordinance. These violation notices were administratively adjudicated by the
City’s Department of Administrative Hearings (DOAH), and three of the plaintiffs paid their
fines, while the fourth never paid. All four plaintiffs had findings of liability entered against
them by the DOAH. In 2017, plaintiffs filed suit against the City, alleging that the DOAH
lacked subject-matter jurisdiction to adjudicate the ordinance violations and, therefore, the
findings of liability against them were void. The City filed a motion for summary judgment,
which the circuit court granted, finding that plaintiffs lacked standing to challenge the City’s No. 1-21-1286
use of the DOAH to adjudicate the violations. Plaintiffs appeal, and for the reasons that follow,
we affirm in part and reverse in part.
¶2 BACKGROUND
¶3 City Ordinance
¶4 Since 2005, the City’s traffic code has contained an ordinance prohibiting the use of cell
phones while driving. The ordinance at issue provides that “no person shall drive a motor
vehicle while using a mobile, cellular, analog wireless or digital telephone.” Chicago
Municipal Code § 9-76-230(a) (amended Nov. 17, 2021). 1 The ordinance further clarifies that
“using” the device includes, but is not limited to, (1) talking or listening to another person on
the telephone, (2) text messaging, (3) sending, reading, or listening to an electronic message,
or (4) browsing the Internet. Id. The prohibition against using such devices does not apply to
(1) law enforcement officers and operators of emergency vehicles when on duty and acting in
their official capacities, (2) people using a telephone hands-free, (3) people using a telephone
to call 911 or other emergency telephone numbers, and (4) people using a telephone while
maintaining the motor vehicle in a stationary parked position and not in gear. Id. § 9-76-230(b).
¶5 A driver who violates section 9-76-230 is subject to a fine between $90 and $500 for each
offense. Chicago Municipal Code § 9-4-020 (amended Nov. 5, 2008). If the violation occurs
at the time of a traffic crash, the driver may be subject to an additional $500 fine. Chicago
Municipal Code § 9-76-230(c) (amended Nov. 17, 2021).
1 The language of section 9-76-230(a) has not changed since 2010, and this language was in effect at the time of all of plaintiffs’ alleged violations. See Chicago Municipal Code § 9-76-230(a) (amended at Chi. City Clerk J. Proc. 106597 (Nov. 17, 2010)). 2 No. 1-21-1286
¶6 Illinois Vehicle Code
¶7 The use of “[e]lectronic communication devices” is also governed by the Illinois Vehicle
Code. 625 ILCS 5/12-610.2 (West 2010). In 2010, the legislature enacted a prohibition against
operating a motor vehicle on a roadway while “using an electronic communication device to
compose, send, or read an electronic message.” Id. § 12-610.2(b). An “ ‘[e]lectronic
communication device’ ” was defined to include “a wireless telephone, personal digital
assistant, or a portable or mobile computer while being used for the purpose of composing,
reading, or sending an electronic message.” Id. § 12-610.2(a). An “ ‘[e]lectronic message’ ”
was defined to include e-mail, text messages, instant messages, or commands or requests to
access the internet. Id. Section 12-610.2 included exceptions for (1) law enforcement officers
or operators of emergency vehicles while performing their official duties, (2) drivers using
such devices for the sole purpose of reporting an emergency situation and continued
communication with emergency personnel during the emergency situation, (3) drivers using
such devices in hands-free or voice-activated mode, (4) drivers of commercial motor vehicles
reading messages displayed on certain permanently installed communication devices,
(5) drivers using such devices while parked on the shoulder of a roadway, and (6) drivers using
such devices when the vehicle is stopped in traffic and the vehicle is in neutral or park. Id.
§ 12-610.2(d).
¶8 In 2014, the legislature expanded the scope of section 12-610.2, amending the statute to
provide that a person may not operate a motor vehicle on a roadway “while using an electronic
communication device.” 625 ILCS 5/12-610.2(b) (West 2014). The amended statute also
expanded the list of exceptions to include (1) a driver using two-way or citizens band radio
services, (2) a driver using two-way mobile radio transmitters or receivers for licensees of the
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Federal Communications Commission in the amateur radio service, (3) a driver using an
electronic communication device by pressing a single button to initiate or terminate a voice
communication, and (4) a driver using an electronic communication device capable of
performing multiple functions, other than a handheld wireless telephone or personal digital
assistant, for a purpose that is not prohibited by the statute. Id. § 12-610.2(d).
¶9 Whenever a person is convicted of any offense under the Vehicle Code “or similar offenses
under a municipal ordinance” (subject to certain exceptions not relevant in the instant case),
the clerk of the court in which such conviction occurs must forward a report of the conviction
to the Secretary of State within five days. Id. § 6-204(a)(2). These records allow the office of
the Secretary of State to perform its duties to cancel, revoke, or suspend drivers’ licenses where
appropriate. Id. § 6-204(a).
¶ 10 Adjudication of Ordinance Violations
¶ 11 Under the Illinois Municipal Code, any municipality may provide for a system of
administrative adjudication of municipal code ordinances to the extent permitted by the Illinois
Constitution. 65 ILCS 5/1-2.1-2 (West 2020). The Illinois Municipal Code, however, defines
a “ ‘system of administrative adjudication’ ” as the adjudication of any violation of a municipal
ordinance except for (1) proceedings not within the statutory or home rule authority of
municipalities and (2) “any offense under the Illinois Vehicle Code or a similar offense that is
a traffic regulation governing the movement of vehicles and except for any reportable offense
under Section 6-204 of the Illinois Vehicle Code.” Id.
¶ 12 With respect to the City, the DOAH is responsible for administratively adjudicating certain
traffic-related offenses. See Chicago Municipal Code § 9-100-010 (amended Oct. 28, 2015).
A person who has received a violation notice has two options: (1) pay the indicated fine or
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(2) request an administrative adjudication to contest the charged violation. Chicago Municipal
Code § 9-100-050(a) (amended Oct. 27, 2021). 2 If a person requests an administrative hearing,
after such hearing, the administrative law officer enters a determination of liability or no
liability and that determination is a final determination for purposes of judicial review. Chicago
Municipal Code § 9-100-070(d) (amended Oct. 28, 2015); Chicago Municipal Code § 9-100-
090(a) (amended Oct. 28, 2015). If a person fails to respond to the violation notice, a
determination of liability is entered against him or her. 3 Chicago Municipal Code § 9-100-
090(b) (amended Oct. 28, 2015).
¶ 13 The City does not dispute that until August 2015, including during the time of plaintiffs’
alleged offenses, violations of section 9-76-230 were administratively adjudicated by the
DOAH under these procedures. In February 2015, the plaintiff in a federal lawsuit against the
City alleged that the City was not permitted to administratively adjudicate violations of section
9-76-230. 4 In August 2015, “pursuant to the advice of counsel,” the City began issuing
“Personal Service Citations” for violations of section 9-76-230, which were adjudicated in the
circuit court of Cook County instead of in the DOAH, and no longer prosecuted such violations
in the DOAH. 5 Additionally, in 2017, the City placed any indebtedness due to violations of the
2 We note that the municipal code in effect at the time of plaintiffs’ alleged offenses did not permit violations of section 9-76-230 to be contested through an adjudication by mail. Chicago Municipal Code § 9-100-060(b) (amended at Chi. City Clerk J. Proc. 107294 (Nov. 17, 2010)). 3 The City’s traffic code is silent as to whether payment of the indicated fine without an administrative hearing results in a determination of liability. See Chicago Municipal Code § 9-100-050 (amended Oct. 27, 2021). We note, however, that each of the plaintiffs who prepaid a fine in the instant case had a DOAH “Findings, Decisions & Order” entered against him or her, which reflected a finding of liability and a judgment in the amount of the fine. 4 The federal lawsuit was subsequently dismissed for lack of standing. 5 Prior to 2015, the City’s traffic code provided that if any violation of section 9-76-230 was subject to the reporting requirements of section 6-204 of the Illinois Vehicle Code (625 ILCS 5/6-204 (West 2010)), the City’s corporation counsel “shall institute appropriate proceedings in a court of competent jurisdiction to prosecute such violation.” Chicago Municipal Code § 9-76-230(d) (added at Chi. City Clerk J. Proc. 43707 (Nov. 5, 2008)). It is undisputed, however, that the City’s general practice for violations of section 9-76-230 was prosecuting them through the DOAH. This subsection of the 5 No. 1-21-1286
ordinance in “Collection Hold” status; while the debts are still owed by the debtors, the City is
not restricting any privileges based on the violations.
¶ 14 Plaintiffs’ Offenses
¶ 15 The four named plaintiffs in the instant case all received violation notices for use of a cell
phone while driving during the period of time in which violations were adjudicated by the
DOAH and took different approaches to addressing the violations.
¶ 16 Plaintiff Luke Sequeira received a violation notice after a police officer stopped his vehicle
on May 9, 2012. Sequeira admitted in his deposition that he was holding his cell phone in his
hand and talking on it at the time. The violation was scheduled for an administrative hearing
at the DOAH on June 8, 2012. He did not appear at the hearing, and the DOAH entered a
“Findings, Decision & Order” reflecting a finding of “Default—Liable by prove-up” and
imposing a $500 fine. On July 20, 2012, Sequeira appeared at the DOAH and moved to set
aside the default; the DOAH entered a “Findings, Decision & Order” granting the motion,
vacating the default, and continuing the proceedings to July 30, 2012. On that date, Sequeira
appeared at the DOAH and sought another continuance, which was granted. The “Findings,
Decision & Order” continued the proceedings to August 27, 2012. Sequeira did not appear
before the DOAH on August 27, 2012, and the DOAH entered a “Findings, Decision & Order,”
which reflected a finding of “Default—Liable by prove-up” and imposed a $500 fine. On
November 3, 2012, Sequeira filed a second motion to vacate the default, which was scheduled
for hearing on November 17, 2012. He did not appear at the hearing, however, and the DOAH
section 9-76-230 was removed in 2015. Chicago Municipal Code § 9-76-230 (amended at Chi. City Clerk J. Proc. 11951, art. X, § 12 (Oct. 28, 2015)). 6 No. 1-21-1286
entered an order striking his motion with prejudice. Sequeira never paid the fine, and the City
claims he owes a $500 fine and a $40 administrative fee, plus interest.
¶ 17 Plaintiff Adina Klein received a violation notice after a police officer stopped her vehicle
on November 26, 2012. Klein admitted in her deposition that she was using her cell phone
while driving at the time. The violation was scheduled for an administrative hearing at the
DOAH on January 15, 2013. Klein did not attend the hearing and instead prepaid a $100 fine.
The DOAH entered a “Findings, Decisions & Order” on December 8, 2012, which reflected a
finding of “Liable—Prepaid.”
¶ 18 Klein was again stopped by a police officer on August 5, 2014, where she received another
violation notice alleging that she violated the ordinance. As with her previous violation, Klein
admitted in her deposition that she was using her cell phone at the time she was driving. The
violation was scheduled for an administrative hearing at the DOAH on September 8, 2014.
Klein appeared before the DOAH and admitted liability for the violation. The DOAH entered
a “Findings, Decisions, & Order” on September 8, 2014, which reflected a finding of “Liable—
by plea.” She paid a $90 fine, plus a $20 administration fee.
¶ 19 Plaintiff Stephen Michelini received a violation notice after a police officer stopped his
vehicle on August 10, 2014. The violation notice alleged that he was using his cell phone while
driving, but in his deposition, Michelini disputed that he committed the violation. The violation
was scheduled for an administrative hearing at the DOAH on September 3, 2014. Michelini
did not attend the hearing and instead prepaid a $100 fine. The DOAH entered a “Findings,
Decisions & Order” on August 23, 2014, which reflected a finding of “Liable—Prepaid.”
¶ 20 Plaintiff Rabbi Aaron Potek received a violation notice after a police officer stopped his
vehicle on September 8, 2014. Potek admitted in his deposition that he was holding his cell
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phone in his hand and was talking on it while driving at the time. The violation was scheduled
for an administrative hearing at the DOAH on October 24, 2014. Potek did not attend the
hearing and instead prepaid a $100 fine. The DOAH entered a “Findings, Decisions & Order”
on October 10, 2014, which reflected a finding of “Liable—Prepaid.”
¶ 21 Complaint
¶ 22 On August 1, 2017, plaintiffs filed a complaint against the City, alleging that the City had
improperly adjudicated ordinance violations in the DOAH, rather than in the circuit court. The
complaint was amended in December 2017, and it was the amended complaint that was the
subject of the motion for summary judgment at issue on appeal. Plaintiffs alleged that section
9-76-230 of the City’s traffic code was “similar” to section 12-610.2 of the Vehicle Code. As
a result, plaintiffs alleged that the DOAH lacked subject-matter jurisdiction to adjudicate the
violations under section 1-2.1-2 of the Illinois Municipal Code, rendering the resulting
judgments void ab initio. Plaintiffs requested a declaratory judgment that all administrative
findings of liability under the ordinance were null and void, and any fines or penalties
stemming from those administrative findings were similarly void. Additionally, under the
theory of unjust enrichment, plaintiffs sought the return of the fines and penalties they paid to
the City. 6
¶ 23 The City filed an answer and a number of affirmative defenses. As relevant to the instant
appeal, the City raised “Unjust Enrichment/Unclean Hands” as an affirmative defense, alleging
that plaintiffs would be unjustly enriched if they were permitted to recover against the City, as
6 Plaintiffs’ amended complaint also included a number of claims in the alternative, in the event that the circuit court found that violations of the ordinance were not moving violations. When ruling upon a motion to dismiss by the City, however, the court found that they were moving violations and accordingly dismissed the counts which were based on the violations being compliance violations. Plaintiffs did not renew those arguments, and the dismissal of these counts is not at issue on appeal. 8 No. 1-21-1286
plaintiffs admittedly violated the ordinance by using their cell phones while driving. The City
also asserted as a counterclaim that, in the event plaintiffs prevailed, the court should find them
liable for violations of the ordinance and impose appropriate fines.
¶ 24 Motion for Summary Judgment
¶ 25 After extensive motion practice, including a motion for class certification, 7 the City filed a
motion for summary judgment on October 15, 2020. In its motion, the City claimed that
plaintiffs lacked standing to file suit, as none of them participated in a DOAH hearing and they
were unable to demonstrate that they were injured by the administrative adjudication of their
violations. The City additionally claimed that, even if plaintiffs had standing, it was entitled to
judgment as a matter of law for several reasons, including that (1) plaintiffs’ claims arose out
of their admitted illegal conduct in violating the ordinance, (2) the claims of the three plaintiffs
who paid their fines were barred by the voluntary payment doctrine, and (3) the claims
regarding 2012 violations did not involve an ordinance that was “similar” to an offense under
the Vehicle Code at the time. The City further claimed that it was entitled to summary judgment
on its counterclaim against plaintiffs Potek, Klein, and Sequeira, as they admitted to violating
the ordinance, which established their liability to the City.
¶ 26 On August 19, 2021, the circuit court entered an order granting the City’s motion for
summary judgment. The court found the City’s standing argument dispositive, finding that
plaintiffs had failed to establish that their injuries were caused by the DOAH’s adjudication of
their ordinance violations. The court identified plaintiffs’ “injuries” as their out-of-pocket
7 While the motion for class certification was filed prior to the motion for summary judgment, the parties argued both motions at the same time before the circuit court. The circuit court’s ruling on the summary judgment motion meant that the motion for class certification was denied as moot, and that ruling is not before us on appeal. 9 No. 1-21-1286
expense to pay the fines. The court further identified the “conduct complained of” as the
violations being sent to the DOAH rather than to the circuit court. Consequently, the court
found that the proper question was whether plaintiffs were required to render payment for
violating the ordinance due to the fact that the violations were adjudicated in the incorrect
forum. The court found that they were not, determining that “Plaintiffs paid because the City
issued them a ticket for violating the Ordinance, not because of any defect in the procedures
reflected on that ticket.” The court found that plaintiffs could not demonstrate that their injuries
were fairly traceable to the City’s conduct in sending the violations to the DOAH and therefore
lacked standing. Based on its finding on the standing issue, the court did not address any of the
City’s other arguments and also dismissed its counterclaim as moot.
¶ 27 Plaintiffs filed a motion to reconsider, which was denied, and this appeal follows.
¶ 28 ANALYSIS
¶ 29 On appeal, plaintiffs contend that the circuit court erred in granting the City’s motion for
summary judgment since they have standing to challenge the DOAH’s subject-matter
jurisdiction. A circuit court is permitted to grant summary judgment only if 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 ILCS 5/2-1005(c) (West 2020). The circuit court must view these
documents and exhibits in the light most favorable to the nonmoving party. Home Insurance
Co. v. Cincinnati Insurance Co., 213 Ill. 2d 307, 315 (2004). We review a circuit court’s
decision to grant a motion for summary judgment de novo. Outboard Marine Corp. v. Liberty
Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992).
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¶ 30 Summary judgment is a drastic measure and should only be granted if the movant’s right
to judgment is clear and free from doubt. Id. However, mere speculation, conjecture, or guess
is insufficient to withstand summary judgment. Sorce v. Naperville Jeep Eagle, Inc., 309 Ill.
App. 3d 313, 328 (1999). The party moving for summary judgment bears the initial burden of
proof. Nedzvekas v. Fung, 374 Ill. App. 3d 618, 624 (2007). The movant may meet his burden
of proof either by affirmatively demonstrating that some element of the case must be resolved
in his favor or by establishing that there is an absence of evidence to support the nonmoving
party’s case. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The purpose of
summary judgment is not to try an issue of fact but to determine whether a triable issue of fact
exists. Schrager v. North Community Bank, 328 Ill. App. 3d 696, 708 (2002) (citing Luu v.
Kim, 323 Ill. App. 3d 946, 952 (2001)).
¶ 31 We note that we may affirm on any basis appearing in the record, whether or not the circuit
court relied on that basis or its reasoning was correct. Ray Dancer, Inc. v. DMC Corp., 230 Ill.
App. 3d 40, 50 (1992). Thus, even if plaintiffs prevail on their argument concerning standing,
we may affirm the circuit court’s judgment if any of the City’s additional bases for summary
judgment provide an alternate basis for the court’s decision.
¶ 32 Standing
¶ 33 In this case, the basis for the circuit court’s grant of summary judgment was its finding that
plaintiffs lacked standing to file suit against the City. The doctrine of standing ensures that
courts decide actual controversies and not abstract questions. Piccioli v. Board of Trustees of
the Teachers’ Retirement System, 2019 IL 122905, ¶ 12. Standing requires “some injury in fact
to a legally cognizable interest.” Greer v. Illinois Housing Development Authority, 122 Ill. 2d
462, 492 (1988). “The claimed injury must be (1) distinct and palpable; (2) fairly traceable to
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defendant’s actions; and (3) substantially likely to be prevented or redressed by the grant of
the requested relief.” Chicago Teachers Union, Local 1 v. Board of Education of the City of
Chicago, 189 Ill. 2d 200, 207 (2000). Here, the dispute between the parties turns on the
question of whether plaintiffs’ “injury” was “fairly traceable” to the City’s actions in
adjudicating ordinance violations in the DOAH.
¶ 34 The resolution of this issue requires us to consider the interplay between two necessary
aspects of any case: standing and subject-matter jurisdiction. Plaintiffs contend that the DOAH
lacked subject-matter jurisdiction to adjudicate violations of section 9-76-230 and, therefore,
each plaintiff was injured by the entry of a void order against him or her. The City, by contrast,
claims that plaintiffs cannot show that they were prejudiced by the DOAH’s adjudication of
their violations, so plaintiffs have no standing to raise their jurisdictional claims. The parties
fault each other for failing to cite case law directly on point; it is apparent, however, that such
authority is exceedingly sparse, so we must rely on general principles of both standing and
jurisdiction in resolving the instant conflict. 8
¶ 35 The matter of a plaintiff’s standing to bring a cause of action is a threshold one; where a
plaintiff has no standing, the proceedings must be dismissed, as lack of standing negates the
plaintiff’s cause of action. Wexler v. Wirtz Corp., 211 Ill. 2d 18, 22 (2004). “A standing
challenge focuses on the party seeking relief—not on the merits of the controversy—and asks
whether that party is entitled to pursue the legal challenge, either in their personal or
representative capacity.” In re Estate of Zivin, 2015 IL App (1st) 150606, ¶ 14. Accordingly,
in determining whether plaintiffs have standing in the instant case, we need not decide whether
8 While not at issue in this case, we note that a challenge to an administrative agency’s jurisdiction is not subject to rules requiring exhaustion of administrative remedies and may be decided by a court in the first instance. See, e.g., Goral v. Dart, 2020 IL 125085, ¶¶ 41-42. 12 No. 1-21-1286
plaintiffs’ subject-matter jurisdiction claim is meritorious, 9 but only whether plaintiffs are
entitled to pursue their legal challenge. In making that determination, however, the nature of a
challenge to an administrative agency’s subject-matter jurisdiction is highly relevant. See
Pinkston v. City of Chicago, 2022 IL App (1st) 200957, ¶ 28 (the DOAH is an administrative
agency created by the City to adjudicate administrative hearings); Downtown Disposal
Services, Inc. v. City of Chicago, 407 Ill. App. 3d 822, 827 (2011) (Administrative Review
Law (735 ILCS 5/3-101 et seq. (West 2008)) applies to final decisions by the DOAH). We
therefore discuss the law applicable to such challenges before considering whether plaintiffs’
claims in the instant case demonstrate that they have been injured by the City’s actions such
that they have standing.
¶ 36 Our supreme court has recognized that “jurisdiction” in the context of an administrative
agency has three aspects: (1) personal jurisdiction, which is the agency’s authority over the
parties and intervenors involved in the proceedings; (2) subject-matter jurisdiction, which is
the agency’s power “ ‘to hear and determine causes of the general class of cases to which the
particular case belongs’ ”; and (3) an agency’s scope of authority under the statute. Business
& Professional People for the Public Interest v. Illinois Commerce Comm’n, 136 Ill. 2d 192,
243 (1989); County of Knox ex rel. Masterson v. Highlands, L.L.C., 188 Ill. 2d 546, 553 (1999);
Goral v. Dart, 2020 IL 125085, ¶ 41. An administrative agency’s powers are limited to those
granted by the legislature, and any action taken by the agency must be authorized specifically
by statute. Pinkston, 2022 IL App (1st) 200957, ¶ 26 (citing Ferris, Thompson & Zweig, Ltd.
v. Esposito, 2015 IL 117443, ¶ 16). Where it acts outside that authority, the agency acts without
9 We note, however, that we discuss the merits of plaintiffs’ subject-matter jurisdiction claim to some extent later in our analysis, as an alternate basis for affirming the circuit court’s judgment. 13 No. 1-21-1286
jurisdiction, and “[i]ts actions are void, a nullity from their inception.” Daniels v. Industrial
Comm’n, 201 Ill. 2d 160, 165 (2002). “Because agency action for which there is no statutory
authority is void, it is subject to attack at any time in any court, either directly or collaterally.”
Id. at 166 (citing Business & Professional People, 136 Ill. 2d at 243-44).
¶ 37 In this case, plaintiffs allege that the DOAH had no power to hear the class of cases at
issue, namely, violations of section 9-76-230 and, therefore, the DOAH lacked subject-matter
jurisdiction over such cases. If true, “[i]ts actions are void, a nullity from their inception” (id.
at 165). The City, however, claims that the circuit court properly declined to even reach the
issue, as plaintiffs were not prejudiced by the entry of the DOAH decisions and therefore could
not trace their purported injuries to the DOAH’s actions. We do not find this argument
persuasive.
¶ 38 Acceptance of the City’s position would violate a bedrock principle of law: that a court—
or an agency, as in this case—can act only where it has the jurisdiction to do so. “ ‘[S]ubject
matter jurisdiction’ refers to the power of a court to hear and determine cases of the general
class to which the proceeding in question belongs.” Belleville Toyota, Inc. v. Toyota Motor
Sales, U.S.A., Inc., 199 Ill. 2d 325, 334 (2002). For a court, this power is granted by our
constitution; for an agency, it is granted by statute. Id. Subject-matter jurisdiction is so
important that it cannot be waived, and may be raised at any time. Id. at 333-34. Indeed, courts
have the affirmative obligation to consider subject-matter jurisdiction even where it is not
raised by the parties. See, e.g., In re Estate of Gebis, 186 Ill. 2d 188, 192 (1999). A lack of
jurisdiction is fatal to a case—if jurisdiction is lacking, any subsequent judgment is rendered
void and may be attacked collaterally. LVNV Funding, LLC v. Trice, 2015 IL 116129, ¶ 27.
“[T]o say that a judgment is void or, in other words, that it was entered without jurisdiction, is
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to say that the judgment may be challenged in perpetuity.” Id. ¶ 38. The suggestion that a
plaintiff is not entitled to even raise a challenge to an allegedly void judgment entered against
him or her is therefore inconsistent with the fundamental importance of the issue.
¶ 39 Here, plaintiffs’ argument is a simple one. They claim that an agency entered a finding of
liability against them when it had no power or authority to do so. As a result, plaintiffs were
exposed to the consequences of such a finding—a monetary fine at a minimum, which,
according to the back of each violation notice, “may be enforced through wage garnishment,
collection agency and credit bureau action, and the imposition of liens on real estate and
personal estates.” Regardless of whether plaintiffs paid the fine or participated in the
proceedings, the result is the same: a legal finding of liability against each plaintiff, issued by
an agency which allegedly had no authority to do so. The City cites no case in which a court
has found that a plaintiff who was subject to an allegedly void judgment lacked the standing
to challenge that judgment, and we cannot find this to be the case here.
¶ 40 To be clear, there are a number of cases in which plaintiffs have been found to lack standing
to challenge administrative procedures, especially when they did not avail themselves of those
procedures by failing to participate in the administrative hearing. This is not that type of case.
Plaintiffs are not contending that the procedures used by the DOAH were improper—they are
arguing the DOAH did not have the authority to hear the cases at all. This is a question they
most certainly had the standing to raise, and we must find that the circuit court erred in granting
the City’s motion for summary judgment on the basis of lack of standing.
¶ 41 Although we have determined the circuit erred in granting the City’s motion for summary
judgment on the basis of standing, the City raises several alternate bases for affirming the
circuit court’s judgment. We may affirm the circuit court’s judgment on any basis supported
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by the record, so we turn to consideration of the City’s additional arguments. See Ray Dancer,
230 Ill. App. 3d at 50.
¶ 42 Authority for 2012 Violations
¶ 43 The first argument raised by the City as an alternate basis for affirming the grant of
summary judgment is its claim that it is entitled to summary judgment with respect to the two
violations occurring in 2012. The City contends that the DOAH had the authority to adjudicate
ordinance violations at that time, as section 9-76-230 was not “similar” to any offense under
the Vehicle Code.
¶ 44 As noted, the Illinois Municipal Code allows a municipality to administratively adjudicate
any violation of a municipal ordinance except for (1) proceedings not within the statutory or
home rule authority of municipalities and (2) “any offense under the Illinois Vehicle Code or
a similar offense that is a traffic regulation governing the movement of vehicles and except for
any reportable offense under Section 6-204 of the Illinois Vehicle Code.” 65 ILCS 5/1-2.1-2
(West 2020).
¶ 45 At the time of the alleged violations in 2012, the Vehicle Code prohibited operating a motor
vehicle on a roadway while “using an electronic communication device to compose, send, or
read an electronic message.” 625 ILCS 5/12-610.2(b) (West 2010). Since section 9-76-230
contains a broader prohibition against “using” cell phones, which includes talking on the phone
(Chicago Municipal Code § 9-76-230(a) (amended Nov. 17, 2021)), the City contends that the
earlier version of the state statute and the ordinance were not sufficiently similar to bar the
DOAH from administratively adjudicating violations of the ordinance. We agree.
¶ 46 We note that the Illinois Municipal Code does not define “similar offense,” and few cases
have considered the issue; the only case cited by the parties merely recites the applicable
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provisions at issue and declares them “similar.” See Catom Trucking, Inc. v. City of Chicago,
2011 IL App (1st) 101146, ¶¶ 13-14 (comparing sections 9-72-070 and 9-72-080 of the
Chicago Municipal Code (Chicago Municipal Code § 9-72-070 (amended at Chi. City Clerk J.
Proc. 93351 (Nov. 15, 2006)); Chicago Municipal Code § 9-72-080 (amended at Chi. City
Clerk J. Proc. 64870 (Dec. 7, 2005))) with sections 15-112, 15-113, and 15-301 of the Vehicle
Code (625 ILCS 5/15-112, 15-113, 15-301 (West 2008)). While it is clear that “similar” does
not mean “identical” (see id. ¶ 14), we must determine whether section 12-610.2(b) of the
Vehicle Code operates to strip the DOAH of its authority to adjudicate violations of section 9-
76-230(a).
¶ 47 The only substantive difference between the two laws is the fact that the City’s ordinance
prohibits talking on a cell phone, while the version of the state statute in effect prior to 2014
does not. We find that this difference, however, is significant and renders the laws dissimilar
for purposes of section 1-2.1-2 of the Illinois Municipal Code.
¶ 48 Our conclusion is based on two main factors. First, the legislative history of section 12-
610.2(b) of the Vehicle Code makes clear that the legislature intentionally passed a statute that
was narrower than the City’s ordinance. As noted, the City’s ordinance has been in effect since
2005 and has always prohibited all cell phone use. By contrast, the legislature first passed the
state statute in 2010, which specifically prohibited only “compos[ing], send[ing], or read[ing]
an electronic message” (625 ILCS 5/12-610.2(b) (West 2010)) and did not prohibit talking.
Attempts to broaden the statute to include talking on a cell phone failed until 2014, with
legislators expressing concern about over-regulating private behavior, especially in less-dense
areas of the state where there was less traffic. See, e.g., 97th Ill. Gen. Assem., House
Proceedings, Mar. 8, 2012, at 19 (statements of Representative Durkin); 97th Ill. Gen. Assem.,
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House Proceedings, Mar. 8, 2012, at 27 (statements of Representative Jefferson). Thus, where
the original version of the state statute was specifically intended to be narrower than the City’s
ordinance, finding the two laws to be “similar” such that the City’s authority to adjudicate
violations of its ordinance was limited would be an odd result.
¶ 49 We are also guided by the fact that the City is a home rule unit of government, meaning
that we must read limitations on its power carefully. Except as limited by article VII, section
6 of the Illinois Constitution, a home rule unit such as the City “may exercise any power and
perform any function pertaining to its government and affairs including, but not limited to, the
power to regulate for the protection of the public health, safety, morals and welfare; to license;
to tax; and to incur debt.” Ill. Const. 1970, art. VII, § 6(a). “Section 6(a) was written with the
intention to give home rule units the broadest powers possible.” Palm v. 2800 Lake Shore Drive
Condominium Ass’n, 2013 IL 110505, ¶ 30 (citing Scadron v. City of Des Plaines, 153 Ill. 2d
164, 174 (1992)). Furthermore, the constitution expressly provides that the “[p]owers and
functions of home rule units shall be construed liberally.” Ill. Const. 1970, art. VII, § 6(m).
¶ 50 The legislature has the authority to limit or deny the exercise of a municipality’s home rule
powers but, if it intends to do so, the statute must contain an express statement to that effect.
Palm, 2013 IL 110505, ¶ 31 (citing City of Evanston v. Create, Inc., 85 Ill. 2d 101, 108 (1981));
see also 5 ILCS 70/7 (West 2012) (“No law enacted after January 12, 1977, denies or limits
any power or function of a home rule unit, pursuant to paragraphs (g), (h), (i), (j), or (k) of
Section 6 of Article VII of the Illinois Constitution, unless there is specific language limiting
or denying the power or function and the language specifically sets forth in what manner and
to what extent it is a limitation on or denial of the power or function of a home rule unit.”). In
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the absence of any such statement, the state and the municipality may govern concurrently.
Palm, 2013 IL 110505, ¶ 31.
¶ 51 Here, the legislature has limited the City’s authority to administratively adjudicate certain
ordinance violations: “any offense under the Illinois Vehicle Code or a similar offense that is
a traffic regulation governing the movement of vehicles and except for any reportable offense
under Section 6-204 of the Illinois Vehicle Code” (65 ILCS 5/1-2.1-2 (West 2020)). See Catom
Trucking, 2011 IL App (1st) 101146, ¶ 30 (finding that the DOAH lacked jurisdiction to
consider certain ordinance violations under section 1-2.1-2 of the Illinois Municipal Code).
Since the powers of a home rule unit must be construed liberally, and limitations on that power
must be express, we find that a narrow interpretation of the “similar[ity]” requirement of
section 1-2.1-2 is appropriate. Here, where the statute is substantially—and intentionally—
narrower than the City ordinance, we cannot find that the City was prohibited from
adjudicating ordinance violations in the DOAH. Accordingly, we affirm the circuit court’s
grant of summary judgment on the 2012 violations on this basis.
¶ 52 Our decision resolves the claims presented by plaintiffs Sequeira and Klein (with respect
to one of her two violations). This leaves the claims concerning Klein’s second violation, as
well as those against plaintiffs Potek and Michelini. We thus continue our analysis to determine
whether there is an alternate basis for affirming the circuit court’s grant of summary judgment
with respect to any of the remaining claims.
¶ 53 Voluntary Payment
¶ 54 The City next contends that it is entitled to summary judgment on Potek’s, Klein’s, and
Michelini’s claims based on the voluntary payment doctrine. The voluntary payment doctrine
“embodies the ancient and universally recognized rule that money voluntarily paid under a
19 No. 1-21-1286
claim of right to the payment and with knowledge of the facts by the person making the
payment cannot be recovered back on the ground that the claim was illegal.” (Internal quotation
marks omitted.) McIntosh v. Walgreens Boots Alliance, Inc., 2019 IL 123626, ¶ 22. To avoid
application of this doctrine, a party must show that the claim asserted was unlawful and that
the payment was not voluntary. Id. ¶ 23. This can be established in various ways, such as by
showing that there was some necessity that amounted to compulsion and payment was made
under the influence of that compulsion. Id. In the absence of fraud, coercion, or a mistake of
fact, however, monies paid under a claim of right to payment but under a mistake of law are
not recoverable. Smith v. Prime Cable of Chicago, 276 Ill. App. 3d 843, 847-48 (1995). While
the issue of duress and compulsory payment is ordinarily one of fact, where the facts are not
in dispute and only one inference can be drawn from the facts, the issue may be decided as a
matter of law. Id. at 850.
¶ 55 Here, plaintiffs Potek, Klein, and Michelini all paid the fines imposed as a result of their
ordinance violations instead of contesting the violations. Accordingly, the City claims that their
payments were “voluntary” and they cannot now challenge them. We do not find this argument
¶ 56 Under the voluntary payment doctrine, a payment is made under duress when the payee
“exert[s] some actual or threatened power over the payor from which the payor has no
immediate relief except by paying.” (Internal quotation marks omitted.) Norton v. City of
Chicago, 293 Ill. App. 3d 620, 627 (1997). Here, each plaintiff was issued a violation notice
by a police officer, which provided that he or she had two options: (1) prepay a fine or
(2) appear at a hearing to contest the violation. Plaintiffs contend that choosing to prepay the
fine instead of contesting the violation was not a true “choice,” as they would have inevitably
20 No. 1-21-1286
lost any challenge to the violation. Under the City’s traffic code, if they contested the violation,
plaintiffs were limited to only certain specified defenses. See Chicago Municipal Code § 9-
100-060 (amended at Chi. City Clerk J. Proc. 23762 (Apr. 18, 2012) (setting forth grounds for
contesting a violation)). None of these grounds would likely apply in this case—plaintiffs
Potek and Klein admitted that they had been using their cell phones while driving, while
Michelini’s violation notice itself constituted prima facie evidence of his liability (see Chicago
Municipal Code § 9-100-070(c) (amended at Chi. City Clerk J. Proc. 23762 (Apr. 18, 2012))).
Moreover, none of the defenses available to them included legal challenges, such as the instant
challenge to the DOAH’s jurisdiction. Plaintiffs thus claim that contesting their violations
nevertheless would have resulted in the imposition of a fine, which would likely be larger than
the fine they faced by prepaying.
¶ 57 As noted, the issue of whether payment was made under compulsion or duress is ordinarily
a question of fact, and may only be decided as a matter of law where the undisputed facts lead
to only one plausible inference. Smith, 276 Ill. App. 3d at 850. Here, however, there are several
inferences that may be drawn from the fact that plaintiffs prepaid their fines, including
plaintiffs’ claims that there was no real “choice” in the matter. As a result, we cannot find that
the voluntary payment doctrine applies to plaintiffs’ claims as a matter of law such that
summary judgment could be granted on that basis.
¶ 58 Our result might be different if, for instance, plaintiffs were challenging the amount of the
fine. In that case, payment of an incorrect amount would be considered voluntary, as plaintiffs
would be able to discover the correct amount through ordinary diligence. See, e.g., McIntosh,
2019 IL 123626, ¶ 40 (finding that the plaintiff could have investigated whether a bottled water
tax listed on a receipt properly applied to his purchase). Here, however, plaintiffs are
21 No. 1-21-1286
challenging the DOAH’s jurisdiction to adjudicate violations of a municipal ordinance.
Plaintiffs would have no reason to independently assess the jurisdiction of the agency issuing
the violation prior to paying. We therefore cannot say that, as a matter of law, plaintiffs are
barred from raising such a claim due to the mere fact that they paid a fine instead of contesting
the violations first. Accordingly, we cannot find that the voluntary payment doctrine provides
an alternate basis for affirming the grant of summary judgment.
¶ 59 In Pari Delicto
¶ 60 Finally, the City claims that it is entitled to summary judgment on Potek’s and Klein’s
claims, as they admitted to violating the ordinance and their claims for unjust enrichment are
therefore barred by the in pari delicto doctrine. The doctrine of in pari delicto “embodies the
principle that a plaintiff who has participated in wrongdoing may not recover damages
resulting from the wrongdoing.” (Internal quotation marks omitted.) Nicholson v. Shapiro &
Associates, LLC, 2017 IL App (1st) 162551, ¶ 10; King v. First Capital Financial Services
Corp., 215 Ill. 2d 1, 34 (2005).
¶ 61 As an initial matter, plaintiffs claim that the City should be precluded from raising this
argument, as it was not included in its affirmative defenses. Plaintiffs are correct that in pari
delicto and unclean hands (which was included as an affirmative defense), although similar,
are distinct theories. Both, however, are based on the theory that a wrongdoer may not benefit
from the wrongdoing. See Nicholson, 2017 IL App (1st) 162551, ¶ 10; Toushin v. First Merit
Bank, 2021 IL App (1st) 192171, ¶ 70. As the City has consistently raised the issue of the effect
of plaintiffs’ admitted violations, we find its arguments to be properly before us on appeal.
¶ 62 To state a cause of action for unjust enrichment, a plaintiff must allege that the defendant
has unjustly retained a benefit to the plaintiff’s detriment and that retention of the benefit
22 No. 1-21-1286
violates the fundamental principles of justice, equity, and good conscience. Gagnon v.
Schickel, 2012 IL App (1st) 120645, ¶ 25. Even when a defendant has retained a benefit,
however, “he is liable for payment only if the circumstances of its receipt or retention are such
that, as between the two persons, it is unjust for him to retain it.” (Internal quotation marks
omitted.) Hayes Mechanical, Inc. v. First Industrial, L.P., 351 Ill. App. 3d 1, 9 (2004).
¶ 63 Additionally, as noted, a party may not seek equitable relief when he or she engaged in
misconduct in connection with the subject matter of the litigation. Toushin, 2021 IL App (1st)
192171, ¶ 70; see also Gunn v. Sobucki, 216 Ill. 2d 602, 618-19 (2005) (“Few principles of
equity are more basic than the doctrine that one seeking the aid of the courts is prohibited from
taking advantage of his own wrongdoing.”). Here, the City contends that plaintiffs’ admitted
violations of the ordinance represents such misconduct. We do not find this argument
¶ 64 There is no dispute that plaintiffs Potek and Klein admitted that they were using their cell
phones at the time that they were stopped by a police officer. We cannot find, however that
this means that they are “taking advantage of [their] own wrongdoing” (Gunn, 216 Ill. 2d at
618-19) in seeking the return of the fines they paid. Under the doctrine of in pari delicto, the
law will not aid either party to an illegal act, so long as they are of equal knowledge,
willfulness, and wrongful intent. Vine Street Clinic v. HealthLink, Inc., 222 Ill. 2d 276, 297
(2006). Here, we cannot say that, as a matter of law, plaintiffs are barred from seeking the
return of their payments under this doctrine. Plaintiffs are not seeking to be rewarded for
violating the law; instead, they are seeking the return of money that they contend was
unlawfully taken from them by an agency acting outside the scope of its authority. As noted, a
defendant is liable for payment under an unjust enrichment theory “only if the circumstances
23 No. 1-21-1286
of its receipt or retention are such that, as between the two persons, it is unjust for him to retain
it.” (Internal quotation marks omitted.) Hayes Mechanical, 351 Ill. App. 3d at 9. As between
the City and plaintiffs, it is for the fact finder to decide which party is entitled to the payments,
and we cannot find as a matter of law that plaintiffs are barred from seeking recovery simply
by virtue of the fact that these proceedings began by plaintiffs violating an ordinance.
Accordingly, we cannot find that this argument provides an alternate basis for affirming the
circuit court’s judgment.
¶ 65 CONCLUSION
¶ 66 For the reasons set forth above, we affirm in part and reverse in part the circuit court’s
grant of summary judgment. We find that plaintiffs had standing to raise their claims alleging
the DOAH’s lack of subject-matter jurisdiction. The violations occurring prior to the January
1, 2014, effective date of the amendment to section 12-610.2 of the Vehicle Code, however,
were properly adjudicated by the DOAH, as section 9-76-230 of the City’s traffic code was
not similar to any offense under the Vehicle Code at the time.
¶ 67 Affirmed in part and reversed in part; cause remanded.
24 No. 1-21-1286
Potek v. City of Chicago, 2022 IL App (1st) 211286
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 17-CH-10507; the Hon. Pamela McLean Meyerson, Judge, presiding.
Attorneys Myron M. Cherry, Jacie C. Zolna, Benjamin R. Swetland, Jerimiah for W. Nixon, and Jessica C. Chavin, of Myron M. Cherry & Appellant: Associates, LLC, of Chicago, for appellants.
Attorneys Celia Meza, Corporation Counsel, of Chicago (Myriam Zreczny for Kasper, and Suzanne M. Loose, Assistant Corporation Counsel, Appellee: and J. David Duffy, Robert J. Wagner, and Patrick Morales-Doyle, of Thompson Coburn LLP, Special Assistant Corporation Counsel, of counsel), for appellee.