Potek v. City of Chicago

2026 IL App (1st) 250158

• Court: Appellate Court of Illinois
• Decided: February 18, 2026
• Docket: 1-25-0158
• Status: Published

Opinion

2026 IL App (1st) 250158 Third Division February 18, 2026 No. 1-25-0158

) AARON POTEK, ADINA KLEIN, and STEPHEN ) MICHELINI, Individually and on Behalf of All Others ) Similarly Situated, ) ) Appeal from the Circuit Court Plaintiffs-Appellants, ) of Cook County. ) v. ) No. 17 CH 10507 ) THE CITY OF CHICAGO; ERIN KEANE, in Her ) The Honorable Official Capacity as Chicago City Comptroller; and ) Pamela McLean Meyerson, PATRICIA JACKOWIAK, in Her Official Capacity as ) Judge Presiding. Chicago Chief Administrative Law Judge and Director ) of the Department of Administrative Hearings, ) ) Defendants-Appellees. ) )

JUSTICE REYES delivered the judgment of the court, with opinion. Presiding Justice Martin and Justice Lampkin concurred in the judgment and opinion.

OPINION

¶1 Between 2012 and 2014, plaintiffs Rabbi Aaron Potek, Adina Klein, and Stephen Michelini

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 violations were administratively adjudicated by the City’s Department of Administrative

Hearings (DOAH), and all three 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, rendering the findings of liability

void. The circuit court granted summary judgment in favor of the City, finding that plaintiffs

lacked standing to challenge the City’s use of the DOAH to adjudicate the violations. On No. 1-25-0158

appeal, we reversed as to the violations occurring after January 1, 2014, finding that plaintiffs

had standing to raise their claims, and remanded for further proceedings. See Potek v. City of

Chicago, 2022 IL App (1st) 211286.

¶2 After remand, the circuit court granted plaintiffs’ motion for class certification, and

litigation continued. In 2024, however, the Illinois Supreme Court issued a decision in which

it found that the provision of the Illinois Municipal Code relied on by plaintiffs in the instant

appeal did not represent a jurisdictional bar against certain administrative adjudications. See

Cammacho v. City of Joliet, 2024 IL 129263, ¶ 38 (discussing 65 ILCS 5/1-2.1-2 (West 2020)).

As a result, plaintiffs shifted their focus to a different basis for their jurisdictional claims. The

circuit court, however, found that this basis had not been previously alleged in plaintiffs’

complaint and denied plaintiffs leave to amend their complaint to add the new basis. Instead,

the circuit court granted summary judgment in favor of the City. Plaintiffs now appeal, and for

the reasons that follow, we reverse and remand.

¶3 BACKGROUND

¶4 City Ordinance and Administrative Adjudication

¶5 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, with certain exceptions not relevant

to the instant appeal, “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

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. 106,597 (Nov. 17, 2010)). 2 No. 1-25-0158

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.

¶6 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 at Chi. City Clerk J. Proc. 43,682 (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).

¶7 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. 43,707 (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.

¶8 Until August 2015, including during the time of plaintiffs’ alleged offenses, violations of

section 9-76-230 were administratively adjudicated by the DOAH under the procedures set

forth in the Chicago Municipal Code. 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. 2 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. In addition, in October 2015, the subsection of section 9-76-230 requiring

reportable offenses to be prosecuted in the circuit court instead of by the DOAH was removed.

2 The federal lawsuit was subsequently dismissed for lack of standing. 3 No. 1-25-0158

See Chicago Municipal Code § 9-76-230 (amended at Chi. City Clerk J. Proc. 11,951, 12,044

(Oct. 28, 2015)). Finally, in 2017, the City placed any indebtedness due to violations of the

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. Based on the City’s discovery responses,

between January 1, 2014, until December 31, 2015, the City collected approximately $10

million in fines paid for violations of section 9-76-230, while an additional $10.1 million

remained unpaid.

¶9 Illinois Vehicle Code

¶ 10 The use of “[e]lectronic communication devices” is also governed by the Illinois Vehicle

Code. See 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,” subject to certain exceptions not

relevant to the instant appeal. 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.

¶ 11 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).

¶ 12 Whenever a person is convicted of any offense under the Illinois 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

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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).

¶ 13 Plaintiffs’ Offenses

¶ 14 The 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.

After receiving a violation notice on August 5, 2014, plaintiff Klein appeared before the

DOAH for an administrative hearing, where she admitted liability for the violation. The DOAH

entered a finding of liability, and Klein paid a $90 fine, plus a $20 administrative fee. Plaintiff

Michelini received a violation notice on August 10, 2014, but did not attend the administrative

hearing, instead prepaying a $100 fine. Similarly, plaintiff Potek received a violation notice on

September 8, 2014, and prepaid a $100 fine instead of attending the administrative hearing. In

their depositions, plaintiffs Klein and Potek admitted to using their cell phones while driving,

but Michelini disputed that he committed the violation.

¶ 15 Complaint

¶ 16 On August 1, 2017, plaintiffs filed a two-count complaint against the City, alleging that

the City had improperly adjudicated ordinance violations in the DOAH, rather than in the

circuit court. Plaintiffs alleged that section 9-76-230 of the City’s traffic code was “similar” to

section 12-610.2 of the Illinois Vehicle Code. As a result, plaintiffs alleged that the DOAH

lacked subject-matter jurisdiction to adjudicate the violations under the Illinois Municipal

Code, rendering the resulting judgments void ab initio.

¶ 17 Plaintiffs’ claims were based on section 1-2.1-2 of the Illinois Municipal Code, which

permits any municipality to provide for a system of administrative adjudication of municipal

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code ordinances to the extent permitted by the Illinois Constitution. 65 ILCS 5/1-2.1-2 (West

2014). 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. As noted, section 6-204 of the Illinois Vehicle Code, which

concerns a court’s reporting requirements to the Secretary of State, requires reporting of “any

offense under this Code or similar offenses under a municipal ordinance,” with certain

exceptions not relevant to the instant appeal. 625 ILCS 5/6-204(a)(2) (West 2014).

¶ 18 As plaintiffs contended that the City’s ordinance was “similar” to the state statute, plaintiffs

maintained that violations were required to be adjudicated in the circuit court and not by the

DOAH, where (1) they were moving violations and (2) they were reportable offenses.

Accordingly, 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.

¶ 19 The complaint was amended in December 2017 to add another named plaintiff, 3 as well as

a number of additional counts. While captioned as “factual allegations,” the amended

complaint contained 102 paragraphs including both traditional factual allegations and setting

forth plaintiffs’ legal arguments concerning the City’s alleged misconduct. As relevant to the

Luke Sequeira, who was added as a named plaintiff, received a violation notice in 2012 and is no 3

longer a party to the action following remand. 6 No. 1-25-0158

instant appeal, the “factual allegations” of the amended complaint alleged that (1) section 1-

2.1-2 of the Illinois Municipal Code forbade the City from prosecuting violations of section 9-

76-230 of the City’s traffic code administratively where they were moving violations which

were similar to offenses set forth in the Illinois Vehicle Code; (2) even if not moving violations,

the City failed to comply with requirements under state law and the City’s own ordinances for

adjudicating the violations; and (3) regardless of whether the violations were moving

violations or compliance violations, section 1-2.1-2 of the Illinois Municipal Code required the

City to prosecute the violations in the circuit court so they could be reported to the Secretary

of State.

¶ 20 With respect to the second point—the failure to comply with the City’s own ordinances—

the amended complaint pointed to four ordinances with which the City allegedly failed to

comply by (1) adjudicating the violations in the incorrect division of the DOAH, (2) failing to

send second violation notices, (3) failing to list license plate numbers on each violation notice,

and (4) imposing fines for violations which exceeded the amount allowed by state law. With

respect to the third point, concerning the reporting requirement, the amended complaint alleged

that “[i]t is clear that the City knew full well that the law required ‘reportable’ Ordinance

violations to be tried in an Illinois circuit court rather than the City’s private administrative

courts,” pointing to section 9-76-230(d) of the Chicago Municipal Code. The amended

complaint concluded its “factual allegations” by alleging that the DOAH lacked jurisdiction

over plaintiffs’ alleged ordinance violations, as (1) Illinois law forbade the City from

adjudicating such violations in its administrative system and (2) “the City violated provisions

of state law and its own municipal code concerning the manner in which Ordinance offenses

must be adjudicated.” The amended complaint alleged that “[t]hus, even if the City’s private

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courts did have jurisdiction to adjudicate Ordinance offenses, the City’s critical failures

deprived those courts of that jurisdiction. For this additional and independent reason, the City’s

private courts acted illegally each time they entered judgment against an alleged Ordinance

violator, accepted a plea of guilty, collected monies, or otherwise adjudicated an alleged

violation of the Ordinance.”

¶ 21 As noted, the amended complaint also set forth a number of additional counts. In addition

to the previously alleged counts for declaratory judgment and unjust enrichment based on a

lack of jurisdiction (counts I through IV), the amended complaint alleged counts against the

City concerning each of the alleged failures to comply with the Chicago Municipal Code

(counts V through XV), as well as counts against the City’s comptroller (count XVI) and

DOAH director (count XVII) for a writ of mandamus based on the allegations concerning the

lack of license plate information on the violation notices.

¶ 22 The City filed a motion to dismiss the amended complaint, and the circuit court denied its

motion with respect to counts I through IV. In ruling on the motion to dismiss, the circuit court

found that the violations of section 9-76-230 constituted moving violations, not compliance

violations. As such, the circuit court granted the motion to dismiss with respect to counts V

through XVII, which were based on the violations being categorized as compliance violations.

¶ 23 Motion for Summary Judgment and Prior Appeal

¶ 24 After extensive motion practice, including a motion for class certification, 4 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

4 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. 8 No. 1-25-0158

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. On August 19, 2021, the circuit court entered

an order granting the City’s motion for summary judgment, finding the City’s standing

argument dispositive.

¶ 25 On appeal, we affirmed in part and reversed in part, determining that plaintiffs had standing

to challenge the subject-matter jurisdiction of the DOAH, as a finding otherwise “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.” Potek, 2022 IL App (1st) 211286, ¶ 38. In addition, we examined

the City’s alternate bases for summary judgment to determine whether affirmance was

nevertheless appropriate.

¶ 26 As relevant to the instant appeal, we considered the City’s claim that it was entitled to

summary judgment with respect to the violations occurring prior to January 1, 2014, based on

its contention that section 9-76-230 was not “similar” to any offense under the Illinois Vehicle

Code at that time and, therefore, the DOAH had the authority to adjudicate such ordinance

violations. In addressing this argument, this court and the City both accepted plaintiffs’

interpretation of section 1-2.1-2 of the Illinois Municipal Code as representing a limitation on

the City’s home-rule authority. 5 We ultimately agreed with the City’s position, finding that the

circuit court’s grant of summary judgment as to violations occurring prior to January 1, 2014,

was proper, as the version of the state statute in effect at that time did not prohibit speaking on

a cell phone, rendering the statute dissimilar from the City’s ordinance for purposes of section

5 We note that there was support for this interpretation in Catom Trucking, Inc. v. City of Chicago, 2011 IL App (1st) 101146, ¶ 30, overruled in part by Cammacho, 2024 IL 129263, which we relied on in determining that the legislature limited the City’s authority to administratively adjudicate certain ordinance violations. Potek, 2022 IL App (1st) 211286, ¶ 51. 9 No. 1-25-0158

1-2.1-2 of the Illinois Municipal Code. Id. ¶ 47. With respect, however, to the City’s other

arguments, we found that they did not provide a basis for affirming the circuit court’s grant of

summary judgment. Accordingly, we reversed the grant of summary judgment with respect to

the alleged violations occurring after January 1, 2014, and remanded for further proceedings.

Id. ¶ 66.

¶ 27 Proceedings After Remand

¶ 28 Following reinstatement of the case in the circuit court and supplemental briefing on the

matter, the circuit court granted plaintiff’s motion for class certification, certifying a class of

“[a]ll individuals who, from the period of January 1, 2014 to the present day, were found liable

for a violation of § 9-76-230 of the Municipal Code of the City of Chicago by the City of

Chicago Department of Administrative Hearings.”

¶ 29 On May 17, 2023, plaintiffs filed a motion for summary judgment, contending that the

findings of liability from the DOAH proceedings and the fines flowing therefrom “are unlawful

and void ab initio for the same reason: Illinois law prohibits cell phone tickets from being

administratively adjudicated.” Plaintiffs contended that section 1-2.1-2 of the Illinois

Municipal Code prohibited the administrative adjudication of the ordinance violations for two

independent reasons: (1) section 9-76-230 of the Chicago Municipal Code was similar to an

offense listed in the Illinois Vehicle Code and the ordinance was a moving violation and (2) the

ordinance was similar to an offense listed in the Illinois Vehicle Code and violations of the

ordinance were reportable to the Secretary of State. Despite this law, plaintiffs maintained that

the City administratively adjudicated such ordinance violations while “kn[owing] full well that

[the] DOAH lacked jurisdiction to adjudicate section 9-76-230 citations.” Plaintiffs noted that,

in August 2015, the City stopped administratively adjudicating the ordinance violations and,

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“[s]hortly thereafter and in a further effort to cover up its illegal conduct, the City quietly

deleted the provision of *** section 9-76-230 that acknowledged that a violation may be

‘subject to the reporting requirements of Section 6-204 of the Illinois Vehicle Code’ and

directing ‘the corporation counsel [to] institute appropriate proceedings in a court of competent

jurisdiction to prosecute such violation.’ ” The City, however, “continued to collect on that

invalid debt for another two years and only ceased on the eve of the filing of this lawsuit.”

¶ 30 Plaintiffs asked the circuit court to “confirm its prior ruling that [section 9-76-230 of the

Chicago Municipal Code] is similar to [section 12-610.2 of the Illinois Vehicle Code] and is

both a moving violation and reportable under Section 6-204 of the [Illinois Vehicle Code].”

As such, plaintiffs requested a ruling that all findings of liability for such violations issued after

January 1, 2014, were void ab initio based on a lack of subject-matter jurisdiction and that all

fines stemming from the administrative proceedings were similarly void and never lawfully

owed. Plaintiffs further contended that the effect of such a finding would place all of the class

members who paid their citations in the same position: “they all paid unlawful fines, costs, and

other amounts that the City had no right to assess or collect,” making summary judgment on

the unjust enrichment counts appropriate.

¶ 31 In response, the City filed a cross-motion for summary judgment on the class claims, as

well as a motion for summary determination on its counterclaims concerning plaintiffs Potek

and Klein. First, the City contended that section 1-2.1-2 of the Illinois Municipal Code did not

preempt the City’s home rule power to administratively adjudicate violations of its municipal

ordinances. Second, even if it did, the City maintained that the 2014 amendment to the

distracted driver statute under the Illinois Vehicle Code did not satisfy the requirements for

preemption, nor did it bring violations of section 9-76-230 within the scope of section 1-2.1-

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2’s moving violation exception. Third, the City claimed that even if the City was preempted

from administratively adjudicating violations of section 9-76-230, the orders adjudicating such

violations remained valid “under the de facto doctrine.” Finally, the City contended that it was

entitled to a summary determination on the issue of liability on its counterclaims against

plaintiffs Klein and Potek where they had admitted to violating the ordinance. In its argument

concerning home rule preemption, the City observed that “[t]his issue has been raised in an

appeal currently pending before the Illinois Supreme Court, Cammacho v. City of Joliet, No.

[129263].” 6

¶ 32 In response to the City’s home rule preemption argument, plaintiffs argued that section 1-

2.1-1 of the Illinois Municipal Code prohibited home rule units from administratively

adjudicating moving or reportable violations. Plaintiffs additionally argued: “Furthermore,

during the relevant time period, the City’s cell phone ordinance provided that violations could

not be administratively adjudicated if they were subject to the reporting requirements of

Section 6-204, which they clearly and unambiguously were,” quoting section 9-76-230(d) of

the Chicago Municipal Code. Plaintiffs claimed:

“Because the state cell phone statute was an offense under the Vehicle Code—and

because the City’s cell phone ordinance was similar to the state statute since at least

2014—the City’s own municipal code prohibited it from administratively adjudicating

that offense, even if it did not constitute a moving violation. In the end, even if the City

6 While not mentioned in its motion, we observe that the City had filed an amicus brief in Cammacho approximately a month earlier, in which it made the same arguments concerning home rule preemption as in its cross-motion for summary judgment in the instant appeal. The issue of home rule preemption was not considered by the circuit court or appellate court in Cammacho, nor was it raised in the City of Joliet’s petition for leave to appeal in the supreme court. As the supreme court noted in its decision, described further below, the home rule preemption argument was raised for the first time during briefing before the supreme court. 12 No. 1-25-0158

is correct that state law poses no barrier to DOAH’s ability to administratively

adjudicate moving or reportable violations (it is not), its own municipal code prohibited

it from doing so.”

¶ 33 In its reply, the City claimed that “[t]his argument, made in passing, does not bear on home

rule preemption.” The City further contended that, while plaintiffs had “neither pleaded nor

developed a claim that a City ordinance barred the City from sending their tickets to DOAH,

it is foreclosed by binding precedent in any event.”

¶ 34 The circuit court heard argument on the parties’ cross-motions for summary judgment on

January 18, 2024. Prior to the court issuing a decision, however, on April 4, 2024, plaintiffs

filed a motion to consider new authority, as the Illinois Supreme Court had decided

Cammacho, 2024 IL 129263, earlier that day.

¶ 35 In Cammacho, the supreme court considered whether section 1-2.1-2 of the Illinois

Municipal Code preempted a home rule unit’s authority to administratively adjudicate certain

offenses. After considering the requirements for legislative preemption of home rule authority,

the supreme court determined that section 1-2.1-2 did not represent a jurisdictional bar against

such adjudications, overruling Catom Trucking to the extent that it had found otherwise. Id.

¶ 31. The supreme court nevertheless affirmed the appellate court’s judgment on an alternate

basis, finding that the City of Joliet had itself limited its home rule authority by providing in

its code of ordinances that certain ordinance violations were required to be prosecuted in the

circuit court. Id. ¶ 50. As such, the supreme court found that “the Joliet Code of Ordinances

did not confer jurisdiction on the hearing officer to administratively adjudicate the ordinance

violations.” Id.

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¶ 36 In plaintiffs’ motion to consider new authority, plaintiffs contended that Cammacho

supported their jurisdictional argument. While plaintiffs recognized that the supreme court

decision “undermine[d] Plaintiff’s preemption theory in this case,” they nevertheless

maintained that the decision “completely vindicate[ed] Plaintiffs on other grounds.” Plaintiffs

maintained that, “[j]ust like the Joliet ordinance in Cammacho,” the Chicago Municipal Code

had long provided that, if violations of section 9-76-230 were reportable, they were required

to be prosecuted in the circuit court. As such, where the municipal ordinance was similar to a

provision of the Illinois Vehicle Code, it was reportable and, consequently, the DOAH did not

have the authority to administratively adjudicate the violations. In addition, based on the

Illinois Supreme Court’s discussion of “similarity” in Cammacho, plaintiffs contended that our

previous decision—which had found the pre-2014 version of the state statute to be dissimilar

to the municipal ordinance—was wrongly decided on that issue.

¶ 37 Plaintiffs also filed a motion to amend the class definition based on the Cammacho court’s

analysis concerning the issue of similarity, contending that our prior holding was “flatly

incompatible” with the approach taken by the supreme court. 7 Plaintiffs further requested the

entry of summary judgment on behalf of the amended class.

¶ 38 In response to plaintiffs’ motion to consider new authority, the City contended that

Cammacho foreclosed plaintiffs’ home rule argument and that the circuit court should “reject

Plaintiffs’ veiled request to let them redo their case on the fly after seven years of litigation

and with cross-motions for summary judgment fully briefed, argued, and ripe for decision.”

7 We observe that the supreme court’s decision did not cite or otherwise address our prior opinion in this case. 14 No. 1-25-0158

Instead, the City argued that the circuit court should follow Cammacho, grant summary

judgment in favor of the City, and enter final judgment in its favor.

¶ 39 On May 2, 2024, plaintiffs filed a “Motion in the Alternative for Leave to Amend

Complaint.” Plaintiffs maintained that no amendment to their pleadings was required but, “out

of an abundance of caution,” sought to add language to their amended complaint specifically

listing section 9-76-230(d) of the Chicago Municipal Code as a basis for the relief requested

therein.

¶ 40 On January 23, 2025, the circuit court entered an order on all pending matters. The circuit

court first found that the theory of liability based on the municipal ordinance was a new theory,

as the focus of the amended complaint was on state law and the counts of the complaint relating

to the reporting requirement cited only state law as the basis for their request for relief. The

circuit court further noted that plaintiffs’ motion for summary judgment did not argue that the

municipal ordinance was a separate and independent basis for imposing liability but

represented part of the City’s “alleged scheme to ‘cover up its unlawful conduct’ of

adjudicating cell phone violations in the wrong forum.” In addition, the circuit court observed

that the certified class consisted of individuals who received tickets between January 1, 2014,

and the present, but the ordinance was in effect from 2008 through October 28, 2015. The

circuit court found:

“After reviewing the Amended Complaint, the Summary Judgment Motions and briefs,

and the Cammacho Motion and briefs, the Court finds that the Amended Complaint did

not sufficiently plead the theory that the City’s Reporting Ordinance required the City

to adjudicate cell phone violations in Circuit Court. This is a new theory that cannot

now serve as the basis for Plaintiffs’ recovery under the Summary Judgment Motions

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as supplemented by the Cammacho Motion. The only theory properly pleaded is that

Division 2.1 [of the Illinois Vehicle Code] deprived the City’s Department of

Administrative Hearings of jurisdiction. Plaintiffs conceded, based on Cammacho, that

they cannot prevail on this theory.”

¶ 41 “Based on the Amended Complaint as it now stands,” the circuit court denied plaintiffs’

motion for summary judgment, finding that the state statute was not jurisdictional. For the

same reason, the circuit court granted the City’s cross-motion for summary judgment and

dismissed the amended complaint with prejudice. The circuit court also denied the City’s

motion for summary determination as to its counterclaims and granted plaintiffs’ cross-motion

for summary judgment on the counterclaims, as no award to the City was warranted where

plaintiffs did not prevail on their unjust enrichment claims.

¶ 42 The circuit court then considered whether plaintiffs should be permitted to amend their

complaint. The circuit court concluded:

“Here, even if the proposed amendment could cure the defective pleading, the other

factors weigh against allowing amendment. This case has been pending for over seven

years. Throughout that time, the parties litigated the issue of whether or not state law—

not a municipal ordinance—deprived the City of jurisdiction. Switching theories at this

late stage would be prejudicial to the City, particularly since Plaintiffs knew about and

could have pleaded their alternative theory from the start. The proposed amendment is

not timely, and Plaintiffs had ample opportunities to amend. The Motion to Amend is

denied.”

¶ 43 This appeal follows.

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¶ 44 ANALYSIS

¶ 45 On appeal, plaintiffs contend that the circuit court erred in not permitting them to raise their

jurisdictional argument based on the Chicago Municipal Code. Plaintiffs further maintain that

state law preempts the City’s authority to administratively adjudicate the ordinance violations.

Finally, plaintiffs raise several arguments concerning the viability of their pre-2014 claims.

We consider each argument in turn.

¶ 46 Ordinance-Based Jurisdictional Argument

¶ 47 Plaintiffs first claim that the circuit court erred in not considering their ordinance-based

jurisdictional argument where (1) it had been previously raised in their amended complaint and

(2) even if it was not, amendment of the complaint should have been granted.

¶ 48 Amended Complaint

¶ 49 We first consider whether, as plaintiffs contend, their amended complaint alleged a

jurisdictional claim based on the municipal ordinance. “Pleadings serve to inform the court

and the parties of the legal theories relied upon and to give notice of the factual issues which

are to be tried.” People v. $1,124,905 U.S. Currency, 177 Ill. 2d 314, 335 (1997) (citing Yeates

v. Daily, 13 Ill. 2d 510, 514 (1958)). They are to be liberally construed with a view to doing

justice between the parties, and “ ‘[n]o pleading is bad in substance which contains such

information as reasonably informs the opposite party of the nature of the claim or defense

which he or she is called upon to meet.’ ” Id. (quoting 735 ILCS 5/2-612(b) (West 1994)).

¶ 50 In this case, we agree with the circuit court that plaintiffs’ amended complaint did not

allege a jurisdictional claim based on section 9-76-230(d) of the Chicago Municipal Code. The

sole reference to that ordinance is in the “factual allegations” section of the amended

complaint, in which plaintiffs alleged that “[i]t is clear that the City knew full well that the law

17 No. 1-25-0158

required ‘reportable’ Ordinance violations to be tried in an Illinois circuit court rather than the

City’s private administrative courts,” pointing to section 9-76-230(d). This discussion,

however, occurs in the context of plaintiffs’ arguments about the state statutory scheme.

Immediately preceding the reference to the Chicago Municipal Code, the amended complaint

alleges that “the three parts of Illinois’s statutory scheme are clear”: (1) section 12-610.2 of

the Illinois Vehicle Code makes distracted driving illegal throughout the state, (2) section 6-

204 of the Illinois Vehicle Code requires reporting of violations of the distracted driving statute

and “similar” municipal ordinances to the Secretary of State, and (3) section 1-2.1-2 of the

Illinois Municipal Code “forbids” municipalities from adjudicating reportable offenses. The

amended complaint alleges that, “[b]ecause the Ordinance is similar to the Statute, and the

Statute is a reportable offense, the Ordinance must be adjudicated by circuit courts equipped

to make reports to the Secretary of State. Therefore, Illinois law forbade the City from

adjudicating alleged Ordinance violations in its administrative courts.” The amended

complaint then alleges that “[t]he City purposefully circumvented this statutory scheme in

order to maximize revenue,” despite being aware of its requirements. This in no way can be

read as raising an independent claim that section 9-76-230(d) of the Chicago Municipal Code

provides a basis for plaintiffs’ jurisdictional claims—the context of the reference makes clear

that the argument being raised concerns the state statutory scheme. The municipal ordinance

is solely being cited as evidence of the City’s knowledge of the state requirements.

¶ 51 We similarly reject plaintiffs’ suggestion that their allegations that the City’s municipal

code deprived the DOAH of jurisdiction encompassed their current claim concerning section

9-76-230(d). The “factual allegations” of the amended complaint included a section titled

“Even if the Ordinance is not a moving violation, the City never followed the requirements for

18 No. 1-25-0158

administratively adjudicating alleged Ordinance violations set out in state law and the City’s

own municipal code.” In this section, the amended complaint pointed to four ordinances with

which the City allegedly failed to comply by (1) adjudicating the violations in the incorrect

division of the DOAH, (2) failing to send second violation notices, (3) failing to list license

plate numbers on each violation notice, and (4) imposing fines for violations which exceeded

the amount allowed by state law. The amended complaint alleged that, as a result of the City’s

failure to comply with these ordinances, “even if it were true that the Ordinance was a

compliance violation related to ‘equipment on a vehicle,’ the City’s adjudication[s] of

Plaintiffs’ alleged offenses were unlawful and void ab initio.”

¶ 52 The amended complaint concluded its “factual allegations” by alleging that the DOAH

lacked jurisdiction over plaintiffs’ alleged ordinance violations, as (1) Illinois law forbade the

City from adjudicating such violations in its administrative system and (2) “the City violated

provisions of state law and its own municipal code concerning the manner in which Ordinance

offenses must be adjudicated.” The amended complaint alleged that “[t]hus, even if the City’s

private courts did have jurisdiction to adjudicate Ordinance offenses, the City’s critical failures

deprived those courts of that jurisdiction. For this additional and independent reason, the City’s

private courts acted illegally each time they entered judgment against an alleged Ordinance

violator, accepted a plea of guilty, collected monies, or otherwise adjudicated an alleged

¶ 53 It is clear based on the context of the entire amended complaint that the reference to

violations of “its own municipal code” referred to the allegations that the City violated the

previously enumerated municipal ordinances governing the manner of adjudicating the

ordinance violations—allegations which were set forth in considerable detail in a separate

19 No. 1-25-0158

section of the amended complaint, and allegations that were the express basis for a combined

16 counts of the amended complaint. There is simply no reasonable reading of the amended

complaint that encompasses a violation of section 9-76-230(d) as an independent basis for

plaintiffs’ jurisdictional claim.

¶ 54 We also find unpersuasive plaintiffs’ contention that the import of section 9-76-230(d) was

“a live issue at summary judgment” and was the subject of extensive briefing post-Cammacho.

We first observe that the briefing after the issuance of Cammacho has no bearing on whether

the matter was adequately alleged in the amended complaint, as a significant portion of the

Cammacho decision concerned Joliet’s municipal ordinance, leading naturally to a discussion

of the City’s municipal ordinance. Additionally, we are hard-pressed to describe section 9-76-

230(d) as a “live issue” during the summary judgment proceedings. In plaintiffs’ motion for

summary judgment, the ordinance was mentioned in the same way it had been in the amended

complaint—as evidence of the City’s knowledge of the reporting requirement. Indeed,

plaintiffs’ discussion of the ordinance is located in a section titled “The City’s efforts to cover

up its unlawful conduct.”

¶ 55 The first instance in which section 9-76-230(d) is raised as an independent basis for

plaintiffs’ jurisdictional claim is in plaintiffs’ response to the City’s cross-motion for summary

judgment, where plaintiffs included a two-paragraph subsection titled “The City’s own

municipal code prohibits the administrative adjudication of moving or reportable violations.”8

Plaintiffs argued that section 1-2.1-1 of the Illinois Municipal Code prohibited home rule units

from administratively adjudicating moving or reportable violations, then added: “Furthermore,

For context, the entirety of plaintiffs’ response to the City’s cross-motion for summary judgment 8

comprised 42 pages. 20 No. 1-25-0158

during the relevant time period, the City’s cell phone ordinance provided that violations could

not be administratively adjudicated if they were subject to the reporting requirements of

Section 6-204, which they clearly and unambiguously were,” quoting section 9-76-230(d) of

“Because the state cell phone statute was an offense under the Vehicle Code—and

because the City’s cell phone ordinance was similar to the state statute since at least

2014—the City’s own municipal code prohibited it from administratively adjudicating

that offense, even if it did not constitute a moving violation. In the end, even if the City

is correct that state law poses no barrier to DOAH’s ability to administratively

adjudicate moving or reportable violations (it is not), its own municipal code prohibited

¶ 56 In its reply, the City claimed that “[t]his argument, made in passing, does not bear on home

rule preemption.” The City further contended that, while plaintiffs had “neither pleaded nor

developed a claim that a City ordinance barred the City from sending their tickets to DOAH,

it is foreclosed by binding precedent in any event,” then cited a case concerning the

presumption that procedural commands to City officials are presumed to be merely directory,

not mandatory. The matter was only briefly raised during the hearing on the cross-motions for

summary judgment, with plaintiffs’ counsel noting in response to the City’s home rule

arguments that the ordinance “goes to show that the City knew what was going on.” Counsel

continued:

“It also—it also, by the way—setting aside state law, *** the City’s own municipal

ordinance says—they’re prohibited under their own municipal ordinance from

administratively adjudicating cell phone violations if they’re reportable.”

21 No. 1-25-0158

¶ 57 Given the limited treatment of the issue during summary judgment proceedings, we cannot

find that the import of section 9-76-230(d) was a “live issue” throughout the case. Indeed, the

City’s reply to plaintiffs’ raising the matter—that the issue had not been previously pleaded or

developed—suggests the opposite. Accordingly, we agree with the circuit court that section 9-

76-230(d) was not pleaded as a basis for plaintiffs’ jurisdictional argument in their amended

complaint.

¶ 58 We also find no merit to plaintiffs’ suggestion that, even if the ordinance was not raised in

the amended complaint, it was properly before the court since it did not represent a new theory

of recovery. “A plaintiff fixes the issues in controversy and the theories upon which recovery

is sought by the allegations in his complaint.” Pagano v. Occidental Chemical Corp., 257 Ill.

App. 3d 905, 911 (1994). As such, a plaintiff may not raise new issues not pleaded in his

complaint to support or defeat a motion for summary judgment. Caulkins v. Pritzker, 2023 IL

129453, ¶ 36. Some courts, however, have permitted a plaintiff to raise a matter for the first

time in connection with summary judgment proceedings where the new matter represents a

new basis for a previously pled theory of recovery. See, e.g., Feliciano v. Geneva Terrace

Estates Homeowners Ass’n, 2014 IL App (1st) 130269, ¶ 34 (where the complaint alleged

breach of fiduciary duty, additional basis for alleging breach of fiduciary duty was proper);

BCSP 330 North Wabash Property LLC v. 401 NSS, LLC, 2024 IL App (1st) 230542-U, ¶ 38

(where complaint alleged mistake, additional basis for alleging mistake was proper). But see,

e.g., 800 South Wells Commercial LLC v. Cadden, 2018 IL App (1st) 162882, ¶ 44 (where

complaint alleged breach of fiduciary duty based on the defendant’s status as a corporate

officer, argument claiming breach of fiduciary duty based on managerial control was not

properly raised). Here, plaintiffs contend that section 9-76-230(d) represented a new basis for

22 No. 1-25-0158

their previously pled theory that the DOAH lacked jurisdiction to administratively adjudicate

the ordinance violations at issue. Plaintiffs suggest that, “[w]hether Plaintiffs’ citations are void

due to [section 1-2.1-2 of the Illinois Municipal Code] or [section 9-76-230(d) of the Chicago

Municipal Code], the fundamental claim is the same.” We cannot agree.

¶ 59 In a different context, our supreme court has explained that a “theory of recovery” is not

synonymous with a “claim” or “cause of action.” Wilson v. Edward Hospital, 2012 IL 112898,

¶ 25. A single cause of action may give rise to several theories of recovery, and, conversely, a

theory of recovery is not a cause of action or claim. Id. Here, the counts for declaratory

judgment and unjust enrichment in plaintiffs’ amended complaint are based on a theory of

recovery grounded in state law. Their arguments concerning the municipal ordinance would

therefore represent a separate theory of recovery—a separate legal source for their claims.

¶ 60 As plaintiffs themselves recognize, “the jurisdictional question here is purely legal.”

Plaintiffs are not seeking to rely on an additional factual basis to support a previously pled

legal theory of recovery. Instead, they are seeking to rely on an entirely different law. While

the result they are seeking remains the same, and there is admittedly substantial overlap

between the theories, the legal underpinnings of their contentions are distinct. This

distinguishes plaintiffs’ cited cases, which largely concerned additional factual arguments, not

new legal theories. 9

¶ 61 Notably, plaintiffs themselves used this approach in their amended complaint. Seven of

their counts allege that the DOAH’s findings of liability for violations of the ordinance are

9 The exception is plaintiffs’ citation of Mentesana v. LaFranco, 73 Ill. App. 3d 204, 208 (1979), which permitted the plaintiff for the first time on appeal to argue a claim for “ ‘active negligence’ ” against the defendant landowner, despite the fact that the complaint did not allege such a claim. The appellate court in that case found that “it would not be consistent with justice for us to ignore the plaintiff’s real claim,” albeit improperly pleaded, where the defendant was aware at all times that the plaintiff was seeking to recover from slipping on ice on the defendant’s property. Id. 23 No. 1-25-0158

void. In addition to their argument concerning state law, plaintiffs’ amended complaint

specifically alleges that the DOAH was deprived of jurisdiction to adjudicate the violations

where (1) they were adjudicated in the wrong division, (2) the City failed to send out second

notices of violation, (3) the City failed to include license plate information on the notices, and

(4) the schedule of fines exceeded what was permissible under state law. Despite the fact that

all of these counts seek the same result—a declaration that the DOAH lacked jurisdiction and

the resultant findings were void ab initio—plaintiffs appropriately pleaded each separately.

Each law that plaintiffs relied on in support of their claims gave rise to a distinct legal theory

that was set forth in a separate count of the complaint. This highlights that what plaintiffs now

seek to do—add a new law in support of their jurisdictional arguments—represents an

impermissible new theory of recovery, not an additional basis to an already-pleaded theory of

recovery. Accordingly, we agree with the circuit court that plaintiff’s jurisdictional argument

based on section 9-76-230(d) of the Chicago Municipal Code was not pleaded in plaintiffs’

amended complaint and could not be considered as part of the summary judgment proceedings.

¶ 62 Amendment of Complaint

¶ 63 Even if their ordinance-based jurisdictional claim was not previously pled in their

complaint, plaintiffs argue in the alternative that the circuit court should have granted their

motion to amend their complaint to include such a claim. Where the evidence supports a right

of recovery on an unpled claim or theory, “a plaintiff’s remedy in such a circumstance is to

move to file an amended complaint.” Pagano, 257 Ill. App. 3d at 911; Filliung v. Adams, 387

Ill. App. 3d 40, 51 (2008) (“If a plaintiff desires to place issues in controversy that were not

named in the complaint, the proper course of action is to move to amend the complaint.”).

Here, prior to the circuit court’s ruling on the cross-motions for summary judgment, plaintiffs

24 No. 1-25-0158

followed this course of action, seeking leave to file a second amended complaint to specifically

cite section 9-76-230(d) as a basis for its jurisdictional claims. The circuit court, however,

denied plaintiffs’ motion.

¶ 64 The decision as to whether to permit amendment of pleadings is within the discretion of

the circuit court, and we will not reverse its decision absent an abuse of that discretion. Jones

v. O’Brien Tire & Battery Service Center, Inc., 374 Ill. App. 3d 918, 936 (2007). In determining

whether to grant leave to amend, a court should consider four factors: (1) whether the proposed

amendment would cure the defective pleading, (2) whether other parties would sustain

prejudice or surprise by virtue of the proposed amendment, (3) whether the proposed

amendment is timely, and (4) whether previous opportunities to amend the pleadings could be

identified. Loyola Academy v. S&S Roof Maintenance, Inc., 146 Ill. 2d 263, 273 (1992).

¶ 65 In this case, the circuit court found that the latter three factors weighed against allowing

amendment. Specifically, the circuit court found that the case had been pending for seven

years, during which time the parties litigated the issue of whether state law deprived the City

of jurisdiction. The circuit court found that “[s]witching theories at this late stage would be

prejudicial to the City, particularly since Plaintiffs knew about and could have pleaded their

alternative theory from the start.” The circuit court determined that “[t]he proposed amendment

is not timely, and Plaintiffs had ample opportunity to amend,” and accordingly denied

plaintiffs’ motion.

¶ 66 We agree with plaintiffs that, under the circumstances of this case, the circuit court should

have granted them leave to amend their complaint. While the circuit court appears to have

focused on the length of time of the litigation, it did not explain its findings as to how the City

would have been prejudiced by allowing amendment, nor did it elaborate as to its finding that

25 No. 1-25-0158

“Plaintiffs knew about and could have pleaded their alternative theory from the start.” We

further observe that, while the litigation has been ongoing for a number of years, the passage

of time is slightly misleading, as the focus of the parties’ arguments shifted substantially over

that time. From the time that plaintiffs filed their amended complaint in December 2017

through the time that we reversed the circuit court’s grant of summary judgment in September

2022, the parties’ jurisdictional arguments focused on two matters: (1) whether plaintiffs had

standing to raise their jurisdictional claims and (2) whether violations of section 9-76-230 of

the Chicago Municipal Code fell within the scope of section 1-2.1-2 of the Illinois Municipal

Code. It was only in August 2023, when the City filed its cross-motion for summary judgment

following remand, that the parties substantively addressed the question of whether the state

statute preempted the City’s home rule authority. 10 Notably, when they did so, they

acknowledged that appellate court authority—which the circuit court was bound to follow and

which plaintiffs had consistently relied on since 2018—had already determined the question.

See Catom Trucking, Inc. v. City of Chicago, 2011 IL App (1st) 101146, overruled by

Cammacho, 2024 IL 129263; Cammacho v. City of Joliet, 2022 IL App (3d) 210591, aff’d in

part and vacated in part by Cammacho, 2024 IL 129263; see also People v. Buckley, 2022 IL

App (1st) 191391-U, ¶ 81 (observing that “[o]ur courts have repeatedly interpreted [section 1-

2.1-2] to prohibit ‘the administrative adjudication of moving violations’ ”). Upon the supreme

court’s reversal of that appellate court authority, plaintiff sought—the same day as the issuance

of that decision—to shift their focus to the municipal ordinance. When the City objected,

10 Prior to that point, the City had not conceded the matter but instead argued that, even if it was construed as a limitation on home rule authority, it should still prevail where the ordinance did not fall within the scope of the state statute. 26 No. 1-25-0158

contending that plaintiffs should not be allowed to do so, plaintiffs filed a formal motion to

amend their complaint less than a month later.

¶ 67 We also observe that the approach taken by the supreme court in Cammacho in focusing

on the municipal ordinance appears to have been relatively novel—it was not raised in either

the circuit court or appellate court, and the parties in the instant appeal have cited no cases in

which a court had previously taken a similar approach. Thus, while plaintiffs were certainly

aware of the existence of section 9-76-230(d), we cannot fault them for not having included

the ordinance as an independent source for their jurisdictional claim. Instead, we find more

relevant the fact that, immediately after the supreme court issued its decision, plaintiffs sought

to add it to their case.

¶ 68 Finally, we cannot find that the City would be prejudiced by permitting the amendment.

“Prejudice to the party opposing an amendment is the most important of the Loyola factors,

and substantial latitude to amend will be granted when there is no prejudice or surprise to the

nonmovant.” (Internal quotation marks omitted.) Hartzog v. Martinez, 372 Ill. App. 3d 515,

525 (2007). The fact that an amendment may result in a change of legal theory does not, itself,

establish prejudice. See, e.g., Giacalone v. Chicago Park District, 231 Ill. App. 3d 639, 644-

45 (1992); Zook v. Norfolk & Western Ry. Co., 268 Ill. App. 3d 157, 167 (1994); see also 735

ILCS 5/2-616(a) (West 2024) (permitting amendments “changing the cause of action or

defense or adding new causes of action or defenses”). Here, as both parties acknowledge, the

impact of section 9-76-230(d) has already been at least somewhat addressed by the parties after

issuance of the supreme court’s decision. Additionally, as the new matter is a legal issue, it

requires no further discovery or other factfinding. Indeed, the parties have already been

litigating the fundamental issue—whether the DOAH had jurisdiction to administratively

27 No. 1-25-0158

adjudicate the ordinance violations. It is only the source of that theory that is changing under

the proposed amendment, as the reporting requirement appears under both the state statute and

the municipal ordinance. See Hazelwood v. Illinois Central Gulf R.R., 114 Ill. App. 3d 703,

709 (1983) (finding amendment not to be prejudicial where it “only changed the source of the

standard”). Instead, denying plaintiffs an opportunity to include a legal theory that had only

recently been approved by any court would serve to prejudice plaintiffs, while any surprise or

prejudice to the City comes directly from the fact that the supreme court decision was issued

during the pendency of the instant litigation—not from any delay or wrongdoing from the

plaintiffs. See Loyola Academy, 146 Ill. 2d at 272-73 (amendment should be allowed if it will

further the ends of justice). In similar circumstances, our courts have regularly allowed

amendment to address recent supreme court decisions. See, e.g., Miller v. Gupta, 174 Ill. 2d

120, 129 (1996) (appellate court properly allowed opportunity to amend to conform with recent

supreme court decision); Mireles v. Dart, 2023 IL App (1st) 221090, ¶ 5 (observing that circuit

court granted motion for leave to amend complaint after a supreme court decision issued during

pendency of proceedings); Insurance Corp. of Hanover v. Shelborne Associates, 389 Ill. App.

3d 795, 797 (2009) (same). Accordingly, we find that the circuit court abused its discretion in

denying plaintiffs leave to amend their complaint.

¶ 69 We find unpersuasive the City’s suggestion that amendment was properly denied where

their claim would fail on the merits, as “it is never an abuse of discretion to deny leave to

amend when the proposed amendment would be futile” (Malacina v. Cook County Sheriff’s

Merit Board, 2021 IL App (1st) 191893, ¶ 40). Here, it is not clear that plaintiffs’ argument

would be futile, especially given the supreme court’s decision in Cammacho. At a minimum,

plaintiffs have nonfrivolous arguments concerning the interpretation of the Chicago Municipal

28 No. 1-25-0158

Code in light of the supreme court’s treatment of the Joliet ordinances. While we express no

opinion as to the ultimate likelihood of success on remand, we find that, under the

circumstances of the case before us, plaintiffs should have been permitted to amend their

complaint to include their ordinance-based jurisdictional argument. Consequently, we remand

the matter to the circuit court with directions to permit plaintiffs to amend counts III and IV of

their complaint accordingly.

¶ 70 Home Rule Preemption

¶ 71 Plaintiffs next ask us to direct the circuit court to enter summary judgment in their favor

“on the basis that the City’s home rule power to administratively adjudicate reportable traffic

offenses is impliedly preempted.” This argument was not raised below and is raised for the

first time on appeal. It is well settled that “[a] party ‘cannot properly raise a new theory for

recovery for the first time on appeal.’ ” Wade v. Stewart Title Guaranty Co., 2017 IL App (1st)

161765, ¶ 88 (quoting Federal Insurance Co. v. Turner Construction Co., 277 Ill. App. 3d 262,

268 (1995)). Consequently, plaintiffs’ argument has been forfeited. Moreover, even if not

forfeited, plaintiffs’ argument concerns counts III and IV of the amended complaint, which we

have remanded to the circuit court for amendment in accordance with this decision. As such,

we have no need to further address plaintiffs’ arguments on this issue.

¶ 72 Pre-2014 Violations

¶ 73 Finally, plaintiffs raise two issues concerning pre-2014 violations, which we previously

found the DOAH had the authority to adjudicate. See Potek, 2022 IL App (1st) 211286, ¶ 51

(affirming circuit court’s grant of summary judgment in favor of the City with respect to

violations prior to January 1, 2014). Plaintiffs contend that our decision in the prior appeal was

incorrect, based on the Cammacho court’s analysis concerning the issue of “similarity,” which

29 No. 1-25-0158

served as the basis for our prior decision. Accordingly, plaintiffs ask us to “reconsider [our]

prior holding on ‘similarity’ in Potek and find that the pre-2014 statute is similar to the

ordinance for purposes of reporting under section 2-604.” This we will not do.

¶ 74 Our prior decision represents the law of the case on the matter. The law-of-the-case

doctrine bars relitigation of an issue previously decided in the same case, whether it is an issue

of law or an issue of fact. Radwill v. Manor Care of Westmont, IL, LLC, 2013 IL App (2d)

120957, ¶ 8. “The law-of-the-case doctrine protects the parties’ settled expectations, ensures

uniformity of decisions, maintains consistency during the course of a single case, effectuates

proper administration of justice, and brings litigation to an end.” Id. There are two exceptions

to this doctrine: (1) where “a higher reviewing court makes a contrary ruling on the same issue

subsequent to the lower court’s decision,” or (2) where “a reviewing court finds that its prior

decision was palpably erroneous.” Id. ¶ 10.

¶ 75 Plaintiffs contend that the Cammacho court’s analysis on the issue of “similarity” renders

our previous finding on the issue “no longer tenable” such that the first exception to the law-

of-the-case doctrine applies. We disagree. Cammacho did not “make[ ] a contrary ruling on

the same issue” (emphasis added) (id.), as required for the exception to apply. Cammacho did

not address the municipal ordinances at issue in this case at all, much less consider whether

they were similar to provisions of the Illinois Vehicle Code. Indeed, the ordinances at issue in

that case concerned the regulation of the length and weight of vehicles, not cell phone use. See

Cammacho, 2024 IL 129263, ¶ 49. We further observe that our prior decision had been filed

approximately 19 months prior to the supreme court’s decision in Cammacho, and that the City

of Joliet’s petition for leave to appeal and its supporting brief before the supreme court both

cited our decision, meaning that the supreme court would have been well aware of our earlier

30 No. 1-25-0158

decision. Its decision in Cammacho nevertheless did not include any discussion of our prior

decision or the analysis contained therein. Thus, where Cammacho did not concern the

ordinances at issue here or refer to our prior decision at all, reading the Cammacho decision as

representing an exception to the law-of-the-case doctrine is unwarranted.

¶ 76 We also note that plaintiffs’ argument places great weight on the fact that our analysis on

similarity cited Catom Trucking, which was overruled by the supreme court in Cammacho.

Plaintiffs, however, overlook that the parties themselves discussed Catom Trucking in their

appellate briefs and that our analysis of the issue did not, in fact, rely on the case. Indeed, in

discussing the parties’ citation of Catom Trucking, we observed in our prior decision that “the

only case cited by the parties merely recites the applicable provisions at issue and declares

them ‘similar.’ ” Potek, 2022 IL App (1st) 211286, ¶ 46 (citing Catom Trucking, 2011 IL App

(1st) 101146, ¶¶ 13-14). While we did recognize that Catom Trucking indicated that the laws

must be similar, not identical (id.), and accepted that court’s suggestion that the legislature had

limited the City’s authority to administratively adjudicate certain ordinance violations (id.

¶ 51), we did not rely on the case in finding the municipal ordinance here to be dissimilar from

the state statute. Instead, we conducted an independent analysis, which was based on the

language of the laws at issue, the legislative history of the state statute, and the narrow

interpretation on limits on home rule authority. Although the supreme court’s decision in

Cammacho clarified that section 1-2.1-2 of the Illinois Vehicle Code did not represent a

limitation on home rule authority, such a decision does not negate the remainder of our

analysis. While plaintiffs may disagree with that analysis, it nevertheless remains the law of

the case and we therefore decline to “reconsider [our] prior holding on ‘similarity’ in Potek.”

31 No. 1-25-0158

¶ 77 We similarly reject plaintiffs’ alternate suggestion that we order the circuit court to

reinstate the counts that were based on the City’s alleged failure to comply with state

requirements concerning the listing of license plate information on the violation notices.11

These counts were dismissed in 2018, and plaintiffs did not appeal their dismissal at the time

or during the first appeal. We will therefore not consider them for the first time on this appeal.

¶ 78 CONCLUSION

¶ 79 For the reasons set forth above, the circuit court’s denial of plaintiffs’ motion for leave to

amend counts III and IV of their complaint is reversed. The cause is remanded for further

proceedings in accordance with this decision.

¶ 80 Reversed and remanded.

11 Plaintiffs refer to these as “Counts XV-XVII” in the argument and “Counts XVI-XVII” in their prayer for relief. 32 No. 1-25-0158

Potek v. City of Chicago, 2026 IL App (1st) 250158

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 17-CH-10507; the Hon. Pamela McLean Meyerson, Judge, presiding.

Attorneys Jacie C. Zolna and Benjamin R. Swetland, of Zolna Swetland, for LLC, of Chicago, for appellants. Appellant:

Attorneys Mary B. Richardson-Lowry, Corporation Counsel, of Chicago for (Myriam Zreczny Kasper, Suzanne M. Loose, Stephen G. Collins, Appellee: and Alexandra Weiss, of City of Chicago Law Department), for appellee.