2020 IL App (5th) 190466 NOTICE Decision filed 08/26/20. The text of this decision may be NO. 5-19-0466 changed or corrected prior to the filing of a Peti ion for Rehearing or the disposition of IN THE the same. APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ______________________________________________________________________________
ROGELIO SALADRIGAS, on Behalf of Himself and ) Appeal from the All Others Similarly Situated, ) Circuit Court of ) St. Clair County. Plaintiff-Appellant, ) ) v. ) No. 11-L-666 ) THE CITY OF O’FALLON, ) Honorable ) Stephen P. McGlynn, Defendant-Appellee. ) Judge, presiding. ______________________________________________________________________________
JUSTICE BOIE delivered the judgment of the court, with opinion. Justices Moore and Overstreet concurred in the judgment and opinion.
OPINION
¶1 This class action case presents a constitutional challenge to the validity of an ordinance
enacted by the defendant, the City of O’Fallon (O’Fallon). O’Fallon’s ordinance authorizes the
municipality to impound a motor vehicle that is used to commit certain offenses, including
driving under the influence. The ordinance also provides for a $500 charge to the owner of any
motor vehicle that is impounded under the ordinance. The $500 charge is in addition to any fees
imposed for the vehicle’s towing and storage and any penalties imposed for the underlying
offense.
¶2 The plaintiff, Rogelio Saladrigas, filed a class action complaint, alleging that O’Fallon’s
ordinance was unconstitutional because the amount of the “administrative fee” was not
1 reasonably related to the recoupment of any actual costs incurred by O’Fallon. O’Fallon filed a
motion for summary judgment maintaining that its ordinance called for a $500 “fine” that is
imposed as a penalty to deter criminal behavior, not a “fee” to recoup costs. O’Fallon argued
that, as a “fine,” the amount passes constitutional muster because the amount is not grossly
disproportionate to the offenses that call for the fine to be imposed.
¶3 O’Fallon’s motion for summary judgment, therefore, required the circuit court to
interpret the language of the ordinance and determine whether it imposed a fine or a fee. The
circuit court interpreted O’Fallon’s ordinance as providing for a $500 fine. As a result, the circuit
court granted O’Fallon’s motion for summary judgment because the plaintiff did not contend that
a $500 “fine” was grossly disproportionate to the underlying offenses calling for the fine. The
plaintiff now appeals the circuit court’s judgment, arguing that the ordinance provides for a fee,
not a fine.
¶4 For the following reasons, we agree with the plaintiff and construe O’Fallon’s ordinance
as imposing a fee, rather than a fine. Accordingly, we reverse the circuit court’s summary
judgment in favor of O’Fallon and remand for further proceedings.
¶5 I. BACKGROUND
¶6 The facts of this case are not disputed. O’Fallon is a home rule municipality. Pursuant to
its home rule powers, O’Fallon enacted an ordinance 1 that imposes an “administrative fee” that
must be paid by the owner of a motor vehicle when the motor vehicle is used to commit certain
violations. The amount of the administrative fee depends on the violation. For more serious
violations, the ordinance sets out a “Level I” administrative fee of $500 and for less serious
violations, a “Level II” administrative fee of $250. Level I violations include, among other
1 Ordinance No. 3653. 2 violations, driving under the influence of alcohol or drugs and driving with a suspended or
revoked driver’s license. 2
¶7 In the preamble of the ordinance, O’Fallon noted that its police department expends
resources to process “arrested persons and the vehicles that they were operating at the time of
arrest.” Therefore, the preamble continues, the police department “has determined that it is in the
best interest of the community that an administrative fee be charged the owner’s [sic] of vehicles
impounded as a result of certain arrests.” O’Fallon expressly stated in the preamble that “the
administrative fees are based upon the amount of resources expended by the members of the
O’Fallon Police Department and designated to help the police department recoup costs
associated with processing certain arrests.” (Emphasis added.)
¶8 As stated, the ordinance authorizes the city to seize and impound vehicles that are used in
connection with any of the violations calling for a Level I administrative fee. The vehicle owner
is liable for the $500 administrative fee in addition to any towing and storage fees. The vehicle’s
owner can request a hearing to challenge whether the requisite violation occurred. If the hearing
officer determines by a preponderance of the evidence that the vehicle was used in a violation,
the hearing officer is required to enter an order finding the vehicle’s owner liable to the city for
the administrative fee. If, however, the hearing officer does not determine by a preponderance of
the evidence that the motor vehicle was used in a violation, the hearing officer must enter an
order for the return of the motor vehicle.
¶9 Prior to a hearing, the vehicle owner can post a $500 bond for the release of the vehicle,
but the owner is “still liable to the towing agent for any applicable towing fees.” The bond is
forfeited to O’Fallon if the administrative fee is imposed. However, if after a hearing, a violation
2 The administrative fee charged for Level II violations is not at issue in this appeal. 3 is not proven by a preponderance of the evidence, the bond will be returned to the person posting
the bond. In addition, the ordinance provides that if the circuit court enters a judgment of not
guilty on the underlying violation that could have resulted in the impoundment of the vehicle, the
person who paid the $500 has 30 days to present a certified copy of the judgment to the police
department to receive a refund.
¶ 10 On October 8, 2011, the plaintiff was arrested by the O’Fallon Police Department for a
Level I violation, his vehicle was towed and impounded pursuant to O’Fallon’s ordinance, and
he paid the $500 administrative fee. In his class action complaint, the plaintiff alleged that the
$500 fee violated his substantive due process rights because the amount of the fee was not
rationally related to the cost of towing services or any other services provided by O’Fallon. The
plaintiff alleged that “[t]here is no rational justification for imposing $500 administrative fee
upon a motorist to merely issue that person a receipt stating they have paid $500.”
¶ 11 The plaintiff brought this class action proceeding on behalf of himself and similarly
situated individuals consisting of all persons who were cited and arrested for any of the Level I
violations that resulted in the payment of the $500 administrative fee set out in O’Fallon’s
ordinance. The plaintiff’s original class action complaint alleged only a facial constitutional
challenge, not an as-applied constitutional challenge. However, the plaintiff’s first and second
amended class action complaints included both facial and as-applied constitutional challenges to
the ordinance.
¶ 12 O’Fallon filed a motion for summary judgment, arguing that its ordinance provided for a
civil fine to punish and deter crime and that the fine passed constitutional muster because the fine
was not grossly disproportionate to the underlying violation calling for the fine. In response, the
plaintiff argued that O’Fallon’s ordinance imposed a fee to recoup costs, not a fine to penalize
4 the vehicle owners, and that there were pending factual issues concerning whether the fee was
reasonably related to any costs the city was attempting to recoup by imposing the fine.
¶ 13 On November 5, 2019, the circuit court entered an order granting O’Fallon’s motion for
summary judgment. The circuit court concluded that O’Fallon “clearly and unmistakably
intended the ordinance in question to impose a ‘fee’ and not a fine.” Nonetheless, the circuit
court also concluded that “the controlling authority” required the court “to disregard the plain
language of the ordinance and recharacterize the ordinance as one imposing a fine and not a fee.”
On that basis, the circuit court granted O’Fallon’s motion for summary judgment. The plaintiff
now appeals the circuit court’s judgment.
¶ 14 II. ANALYSIS
¶ 15 Because this case comes before us on appeal from a summary judgment, our review is
de novo. Beaman v. Freesmeyer, 2019 IL 122654, ¶ 22. Summary judgment should be granted
only where the pleadings, depositions, admissions on file, and affidavits, when viewed in the
light most favorable to the nonmoving party, 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 2018). In ruling on a motion for summary judgment, we must construe the
pleadings, depositions, admissions, and affidavits strictly against the movant and liberally in
favor of the opponent. Beaman, 2019 IL 122654, ¶ 22.
¶ 16 Here, the plaintiff’s class action complaint presents a substantive due process challenge
to O’Fallon’s ordinance. Generally, legislation and ordinances do not violate substantive due
process if they bear a rational relationship to a legitimate governmental purpose and are neither
arbitrary nor discriminatory. Jackson v. City of Chicago, 2012 IL App (1st) 111044, ¶ 34.
However, before applying the rational basis test to an ordinance imposing a monetary charge, the
5 court must first determine whether the monetary charge was intended as a fine or a fee. People v.
Gildart, 377 Ill. App. 3d 39, 41 (2007). This distinction is important because fines and fees serve
different purposes and are scrutinized under differing constitutional standards.
¶ 17 A “fine” is a pecuniary punishment payable to the public treasury that is imposed as part
of a sentence on a person convicted of a criminal offense. People v. Graves, 235 Ill. 2d 244, 250
(2009). As a form of punishment, due process requires that a fine be rationally related to the
offense on which the defendant is sentenced. People v. Jones, 223 Ill. 2d 569, 605 (2006).
Therefore, with respect to a fine, the constitutional inquiry is whether the amount of the fine is
grossly disproportionate to the offense. Id.
¶ 18 A “fee” is a charge to recoup expenses incurred for providing labor and services. Graves,
235 Ill. 2d at 250. A fee is not punitive in nature and is a collateral consequence of a defendant’s
conviction. People v. Gonzalez, 2019 IL App (1st) 152760, ¶ 96. Due process requires that a fee
be in an amount that bears some reasonable relationship to the actual costs that the fee is
intended to recoup. Carter v. City of Alton, 2015 IL App (5th) 130544, ¶ 19.
¶ 19 Because this appeal centers on whether O’Fallon’s ordinance calls for a fee or a fine, we
must delve into the language of the ordinance. The construction of a municipal ordinance
presents a question that we review under the de novo standard of review. Ries v. City of Chicago,
242 Ill. 2d 205, 216 (2011). In construing the validity of a municipal ordinance, the same rules
are applied as those that govern the construction of statutes. Napleton v. Village of Hinsdale, 229
Ill. 2d 296, 306 (2008). We are to determine and give effect to the legislating body’s intent as
shown by the ordinance’s plain and ordinary language. Scott v. City of Chicago, 2015 IL App
(1st) 140570, ¶ 11; McGrath v. City of Kankakee, 2016 IL App (3d) 140523, ¶ 21. In doing so,
6 we must view the ordinance as a whole, including other relevant provisions. Crittenden v. Cook
County Comm’n on Human Rights, 2012 IL App (1st) 112437, ¶ 81.
¶ 20 We now turn to the plaintiff’s due process concern and, specifically, to whether
O’Fallon’s ordinance imposes a fine or a fee. Initially, we note that O’Fallon expressly labeled
the $500 monetary charge in its ordinance as an “administrative fee.” (Emphasis added.) The
label O’Fallon used to describe the monetary charge is strong evidence of the municipality’s
intent in imposing the monetary charge. Jones, 223 Ill. 2d at 583. However, O’Fallon’s use of the
term “administrative fee” does not end our inquiry. The label used in the ordinance is not
necessarily definitive if the actual attributes of the monetary charge indicate that the charge is
something different than its label. Id. at 599.
¶ 21 O’Fallon argues that, despite its label, the attributes of the $500 administrative fee are
that of a fine, imposed for punitive reasons, not a fee to recoup costs. O’Fallon argues that the
charge is punitive because it punishes vehicle owners when they use their vehicle, or allow their
vehicle to be used, in the commission of certain offenses; the amount of the monetary charge
varies depending on the seriousness of the offense; the funds collected from imposing the charge
were not earmarked for a particular municipal fund; and the charge did not compensate O’Fallon
for “prosecuting” the vehicle owner.
¶ 22 We disagree with O’Fallon’s characterization of its ordinance. As we explained, the best
indicator of the intent of an ordinance is the plain language used by the municipality in creating
the ordinance. First American Bank Corp. v. Henry, 239 Ill. 2d 511, 515 (2011) (“The cardinal
rule of statutory construction is to ascertain and give effect to the legislature’s intent, and the
plain language of the statute is the best indication of that intent.”). In fact, all other rules of
7 construction are subordinated to this cardinal principle. Metzger v. DaRosa, 209 Ill. 2d 30, 34
(2004).
¶ 23 Accordingly, we find it significant that, not only did O’Fallon describe the $500 charge
as a fee, but it expressly stated in the preamble that the ordinance’s purpose was to “recoup costs
associated with processing certain arrests.” (Emphasis added.) This is the purpose of a fee, not a
fine. We also find it significant that O’Fallon made no mention of punishment or crime
deterrence in setting out the purpose for imposing the “administrative fee.” O’Fallon does not
use any language in its preamble or in the body of the ordinance to suggest that any part of the
city’s intent in imposing the fee is to deter crime or to punish people who own vehicles that have
been used to commit Level I offenses.
¶ 24 In addition to this express language, we believe that some of the attributes of the $500
charge are consistent with the charge being a fee. Under the ordinance, the vehicle owner must
either pay the $500 charge or proceed to an administrative hearing to retrieve the impounded
vehicle. If the owner elects to pay the charge, the owner receives, in return, a tow release receipt
that must be presented to the towing company before the vehicle can be retrieved. The charge is
independent of anyone being convicted of the underlying offense, which suggests that it is a fee.
We also find it significant that the vehicle’s owner is assessed the monetary charge regardless of
whether the vehicle owner was involved in committing any criminal offense. The supreme court
has stated that a fine is “pecuniary punishment imposed as part of a sentence on a person
convicted of a criminal offense.” (Internal quotation marks omitted.) Graves, 235 Ill. 2d at 250
(quoting Jones, 223 Ill. 2d at 581). Accordingly, we do not believe that the attributes of the $500
charge in O’Fallon’s ordinance clearly indicate that O’Fallon intended the charge to serve a
8 purpose different than its chosen label (fee) and different than its expressed intent (recoupment
of costs).
¶ 25 O’Fallon notes that the charge is only imposed where the owner is found guilty of using
the vehicle, or allowing the vehicle to be used, in the commission of an offense. The vehicle
owner, however, is not guilty of a Level I offense if the owner’s only involvement is allowing a
nonowner to use the vehicle. In addition, the charge is imposed before any defendant is
convicted of the underlying offense and is, therefore, not punishment imposed as part of the
sentence. See People v. Price, 375 Ill. App. 3d 684, 700 (2007) (a factor to consider when
determining whether a charge is a fine or a fee is whether the charge is only imposed after
conviction).
¶ 26 We agree with O’Fallon that some attributes of the $500 charge are consistent with the
$500 charge being a fine. However, those attributes are not so compelling that they outweigh the
plain language that O’Fallon used in declaring its intent in creating the ordinance. The attributes,
at most, are inconclusive as they are consistent with a fine and a fee. O’Fallon’s express intent
requires us to construe the $500 charge in this case as a fee.
¶ 27 Our analysis in Carter supports our conclusion in the present case that O’Fallon’s
ordinance should be scrutinized as a fee under due process standards. In Carter, this court
addressed four municipal impoundment ordinances that authorized monetary charges to vehicle
owners when their vehicles were impounded due to the commission of certain offenses. Carter,
2015 IL App (5th) 130544, ¶¶ 3, 5, 7, 8. Similar to the present case, the ordinances at issue in
Carter labeled the charges as “administrative fee” or “administrative processing fee.” Also
similar to the present case, the plaintiffs in Carter challenged the ordinances on substantive due
9 process grounds, arguing that fees were not reasonably related to the recoupment of expenses for
any services provided by the municipality. Id. ¶ 10.
¶ 28 The Carter court agreed with the plaintiffs that due process required that the amount of
the fees must bear some reasonable relationship to the actual costs the fees were intended to
recoup. Id. ¶ 19. Accordingly, the Carter court applied the due process analysis applicable to
fees, not fines. The municipalities in Carter did not argue that their ordinances created fines. Id.
¶ 28. Nonetheless, on appeal, the Carter court analyzed the plaintiffs’ constitutional concerns
under the de novo standard of review as a question of law, applying the analysis applicable to
fees, not fines. In the present case, we follow our analysis in the Carter decision and, likewise,
apply the due process analysis applicable to fees.
¶ 29 We also find support for our decision in People v. Ratliff, 282 Ill. App. 3d 707 (1996),
where the court considered a municipal impoundment ordinance in the context of a double
jeopardy challenge. The Ratliff court concluded that a $500 charge was a fee rather than a fine
for purposes of double jeopardy analysis under the Illinois Constitution because the $500 charge
was “purely remedial” and not for punishment. Id. at 714-15.
¶ 30 O’Fallon cites McGrath, 2016 IL App (3d) 140523, in support of its argument that the
$500 charge in its ordinance is a fine. However, we believe McGrath supports our analysis. In
McGrath, the City of Kankakee (Kankakee) enacted an ordinance that imposed a $500
“administrative penalty” on vehicle owners when they allowed their vehicles to be used in the
commission of certain offenses. (Emphasis added and internal quotation marks omitted.) Id. ¶ 3.
The plaintiff filed a class action complaint against Kankakee, asserting a procedural due process
claim alleging that she was not given notice that her vehicle could be impounded if she was
arrested for engaging in criminal activity. Id. ¶ 13. Kankakee filed a motion to dismiss the
10 plaintiff’s complaint, which the trial court granted in part because the plaintiff had failed to
sufficiently allege facts showing whether impoundment warning signs were posted when her
vehicle was impounded. Id. ¶ 7. On appeal, the plaintiff also argued that the impoundment
ordinance was unconstitutional because it violated her procedural due process rights and was an
unlawful attempt to use police powers to produce revenue. Id. ¶ 1.
¶ 31 The McGrath court did not address the specific due process argument that the plaintiff
raises in the present case. Nonetheless, relevant to our analysis, the McGrath court had to address
whether the monetary charge contained within Kankakee’s ordinance was a fee or a fine in order
to address the plaintiff’s argument that the charge was an unlawful attempt to use police powers
to produce revenue. The McGrath court first set out the exact same legal framework that guides
our analysis in the present case as follows:
“In interpreting a municipal ordinance, courts give effect to the intent of the
municipality as shown by the plain and ordinary language of the ordinance. DTCT, Inc. v.
City of Chicago Department of Revenue, 407 Ill. App. 3d 945, 949 (2011). If the
language of an ordinance is clear and unambiguous, the court must interpret it according
to its terms. La Salle National Bank v. City Suites, Inc., 325 Ill. App. 3d 780, 786 (2001).
The use of the word ‘penalty’ in a statute or ordinance connotes a fine, not a fee. People
v. Jones, 223 Ill. 2d 569, 588-89 (2006).” Id. ¶ 21.
¶ 32 After laying out this legal framework, the McGrath court then explained how, generally,
impoundment “penalties” can relate to the legitimate purpose of deterring criminal activity. Id.
¶¶ 22-23. Then, turning to the specific “fine” versus “fee” issue before the court in that case, the
McGrath court’s analysis consisted entirely of one sentence: “The City’s use of the word
‘penalty’ in the ordinance establishes that the charge is a fine, not a fee.” Id. ¶ 24. The McGrath
11 court did not conduct any further analysis of the issue. The court did not analyze the attributes of
the monetary charge in Kankakee’s ordinance to reach its conclusion; instead, the court followed
the well-established, cardinal rule of ordinance construction that required the court to give effect
to the intent of the municipality as evidenced by the “clear and unambiguous” language of the
ordinance.
¶ 33 McGrath, therefore, supports our analysis in which we, likewise, give effect to the intent
of O’Fallon as shown by the plain and ordinary language of the ordinance. The language of
O’Fallon’s ordinance plainly states that it is a “fee,” and the preamble to the ordinance plainly
states that the purpose of the fee is to recoup costs. As the circuit court in the present case
correctly observed, O’Fallon “clearly and unmistakably intended the ordinance in question to
impose a ‘fee’ and not a fine.” Under these facts, we are obligated to give effect to O’Fallon’s
clear and unmistakable intent and construe the ordinance consistent with that intent. O’Fallon’s
ordinance, therefore, imposes a fee. Had O’Fallon stated that its intent in imposing the $500
charge was to punish the vehicle owners and to deter crime, our analysis would be different.
However, it did not do so. It expressed cost recoupment as the intended purpose in imposing the
fee.
¶ 34 O’Fallon also cites People v. Jaudon, 307 Ill. App. 3d 427 (1999), Towers v. City of
Chicago, 173 F.3d 619 (7th Cir. 1999), and Jackson v. City of Chicago, 2012 IL App (1st)
111044, in support of its argument, but those cases offer no guidance in distinguishing between a
fine and a fee. In Jaudon and Towers, the ordinances imposed a $500 “fine” or “administrative
penalty.” Jaudon, 307 Ill. App. 3d at 431-32; Towers, 173 F.3d at 621. The Jaudon and Towers
courts simply accepted the chosen labels and proceeded to analyze, among other issues, whether
the fines violated the excessive fines clause of the eighth amendment of the United States
12 Constitution (U.S. Const., amend. VIII). Jaudon, 307 Ill. App. 3d at 438-39; Towers, 173 F.3d at
623-24 (“The parties have not disputed that the Eighth Amendment’s Excessive Fines Clause
applies to the civil penalties at issue in this case.”). Therefore, these cases offer us no guidance in
the present case where the municipality enacted an impoundment ordinance, but with the express
intent to recoup costs and no mention of punishment or crime deterrence.
¶ 35 Likewise, in Jackson, the court addressed arguments that an impoundment ordinance that
imposed a “penalty” was unconstitutional for multiple reasons, including that it had no innocent
owner exception and violated procedural due process, separation of powers, and the taking
clause of the federal constitution. Jackson, 2012 IL App (1st) 111044, ¶¶ 29, 44, 52, 63. Again,
none of these issues raised by the parties required the Jackson court to first determine whether
the monetary charge at issue was a fine or a fee. Accordingly, the Jackson court offered no
analysis on this issue.
¶ 36 O’Fallon cites Jones, 223 Ill. 2d at 600, and Graves, 235 Ill. 2d at 250-51, for the
proposition that the Illinois Supreme Court has held that a monetary charge is a fee only if the
charge is intended to reimburse the government for some cost incurred in a defendant’s
prosecution. Based on language from these cases, O’Fallon concludes that the monetary charge
in its ordinance cannot be considered a fee because it is not related to the actual prosecution of
any offenses. We disagree.
¶ 37 In Graves, our supreme court stated that a fee is a charge that “ ‘seeks to recoup expenses
incurred by the state,’ or to compensate the state for some expenditure incurred in prosecuting
the defendant.” (Emphasis added.) Graves, 235 Ill. 2d 250 (quoting Jones, 223 Ill. 2d at 582).
Although the supreme court described fees as including monetary charges imposed for the
recoupment of prosecutorial expenses, we do not believe that the supreme court intended to limit
13 the definition of a “fee” to the recoupment of only prosecutorial expenses in all contexts. Here,
such a limited definition of a “fee” would be nonsensical in the context of municipal
impoundment ordinances that seek to recoup costs that are unrelated to prosecution of offenses.
As the Carter court observed, “courts are increasingly concerned about the misuse of fees and
fines as means of generating revenue.” Carter, 2015 IL App (5th) 130544, ¶ 20. For the reasons
we explained above, substantive due process requires that monetary charges that municipalities
impose with the intent to recoup nonprosecutorial related expenses must be reasonably related to
the expenses the municipality is seeking to recoup. Neither Jones nor Graves stand for the
proposition that fees unrelated to prosecution of crimes are exempt from this substantive due
process scrutiny.
¶ 38 Finally, we note that the circuit court has not addressed the issue of whether the amount
of the fee was rationally related to O’Fallon’s legitimate governmental interests in recouping
costs. The circuit court did not address this issue because it granted summary judgment in favor
of O’Fallon on the basis that the ordinance established a fine. The plaintiff argues that he has
sufficiently pled that the fee is not rationally related to the recoupment of any costs and that there
remains a factual question concerning the reasonableness of the amount of the charge. We agree
and, therefore, conclude that the circuit court erred in granting O’Fallon’s motion for summary
judgment. We express no opinion concerning whether the amount of the fee is rationally related
to O’Fallon’s recoupment of expenses. We hold only that the court erred in granting summary
judgment on the basis that O’Fallon’s ordinance provided for a fine.
¶ 39 III. CONCLUSION
¶ 40 For the foregoing reasons, we reverse the circuit court’s summary judgment in favor of
O’Fallon and remand for further proceedings.
14 ¶ 41 Reversed and remanded.
15 2020 IL App (5th) 190466
NO. 5-19-0466
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
ROGELIO SALADRIGAS, on Behalf of Himself and ) Appeal from the All Others Similarly Situated, ) Circuit Court of ) St. Clair County. Plaintiff-Appellant, ) ) v. ) No. 11-L-666 ) THE CITY OF O’FALLON, ) Honorable ) Stephen P. McGlynn, Defendant-Appellee. ) Judge, presiding. ______________________________________________________________________________
Opinion Filed: August 26, 2020 ______________________________________________________________________________
Justices: Honorable Mark M. Boie, J.
Honorable James R. Moore, J., and Honorable David K. Overstreet, J. Concur ______________________________________________________________________________
Attorneys Donna Morrison Polinske, Brian L. Polinske, 701 North Main Street, for Edwardsville, IL 62025 Appellant ______________________________________________________________________________
Attorney Brian M. Funk, O’Halloran, Kosoff, Geitner & Cook, LLC, 650 Dundee for Road, Suite 475, Northbrook, IL 60062 Appellee ______________________________________________________________________________