Red-light, speed-cam lawsuit gets stronger after deposition

A city official’s damaging deposition Thursday appeared to strengthen a lawsuit with the potential to force cash-strapped Chicago to refund $200 million in fines and late fees paid by motorists denied due process after receiving red-light camera and speed-camera tickets.

Tina Consola, managing deputy director of Mayor Rahm Emanuel’s Department of Finance, acknowledged that City Hall “accelerated the determination of liability on the front end, sped up late penalties on the back end” and changed the law when a judge raised questions about the process, according to plaintiffs attorney Jacie Zolna, who questioned Consola.

Potentially more damaging was Consola’s response when Zolna confronted her with a photograph used to issue a speed-camera ticket to one of his clients accused of going 34 mph near Orr High School in a zone that was marked as having a 20 mph speed limit, but only when children were present.

“She could not discern whether it was a child in the picture. Yet, she also told me it was a completely acceptable practice for the city to issue such tickets,” Zolna said Thursday.

“They’re putting the impossible burden on people of trying to determine whether a blob in a picture is a school child. They’re collecting on tickets that never should have been issued in the first place.”

“The City continues to believe that it will prevail in this case and nothing said in the deposition today changes that,” Law Department spokesman Bill McCaffrey said in an email. The evidence shows that the plaintiffs violated the law and received notices of these violations, and therefore are not entitled to any recovery. We will continue to focus on defending this case in court, and not on trying the case in the media.”

Zolna also cited several other potentially damaging admissions by Consola. She disclosed that:

• In February 2016, shortly after a judge accused the city of denying motorists due process, the state stopped siphoning state tax refunds of speed-cam and red-light camera scofflaws for fear that Zolna would win the lawsuit.
• About a month later, the city stopped booting vehicles owned by speed-camera and red-light camera scofflaws and stopped asking the state to suspend their driver’s licenses. When Zolna asked Consola why, an attorney representing the city “refused to let her answer.”
• Around the same time, the city changed its procedures to give motorists 21 days to contest a notice, instead of 14 days, and lengthened — from 21 to 25 days — the grace period before late fees are tacked on.
• IBM — the company awarded a 10-year, $188 million contract to operate the computer system used to generate millions of parking, red-light camera and speed-camera tickets — makes the final determination of when tickets are issued, not the city.

Earlier this year, a Circuit Court judge accused City Hall of violating the “fundamental principles of justice, equity and good conscience” by issuing thousands of red-light and speed-camera tickets. The motorists who sued alleged they were denied due process because they were not given a second notice of their violations.

Technically, Circuit Judge Kathleen Kennedy simply rejected the city’s motion to dismiss the case and kept alive a lawsuit Zolna filed on behalf of three ticketed motorists.

But the wording of her ruling was so strong there was little doubt thousands of red-light and speed-camera tickets issued since 2003 would ultimately be nullified, potentially forcing the city to refund hundreds of millions of dollars in fines and penalties already paid.

“The second notice provision is designed to protect a non-responding violator’s right to contest a violation before determination of liability issues. This right is generally injured by a directory reading,” the ruling stated. “Therefore, the term ‘shall’ means mandatory in the second notice provisions. . . . Because the second notice requirement at issue is mandatory under the [municipal code of Chicago], the determinations of liability are void and subject to collateral attack.”

Kennedy ruled that the three named plaintiffs in the case had “sufficiently alleged facts showing that the city’s retention of payments from determinations made without a second notice violates the fundamental principles of justice, equity and good conscience.”

“The alleged practice of accelerating late fees without statutory compliance is sufficient to show a violation of the fundamental principles of justice, equity and good conscience,” the judge wrote.

Armed with that ruling, Zolna had hoped to forge ahead with his request for class-action status after months of discovery to determine precisely how many motorists are eligible for refunds.

He subsequently accused the city of trying to slow that process to a crawl by refusing to cough up records and produce a “corporate representative” for a deposition. Kennedy then ordered the deposition.

The stonewalling allegation marked the latest chapter in a long-running saga between Zolna and the city.

Days after Kennedy’s ruling, Zolna accused Emanuel of changing the rules in the middle of the game in a move he branded an “admission of guilt” that strengthens his claim to refunds.

Without fanfare, Emanuel asked the City Council to amend Chicago’s municipal code to drop the step that Zolna’s lawsuit had accused City Hall of skipping.

No longer would the city be required to send a second notice of violation prior to issuing a determination of liability against motorists slapped with speed-camera and red-light camera tickets.

In addition to abolishing the second-notice requirement that Zolna had accused the city of ignoring, City Hall made an administrative change to correct the due process violation cited in the lawsuit.

Instead of assessing late penalties whenever motorists don’t pay up within 21 days of a liability determination, the city started abiding by the 25-day grace period required by law.