Mayor Rahm Emanuel on Wednesday got the green-light for a red-light camera do-over impacting 1.5 million motorists.
Ignoring warnings that the after-the-fact correction won’t let the city off the hook for “procedural” mistakes already made, the City Council approved Emanuel’s plan to give drivers nailed by red-light and speed cameras a second chance to challenge their tickets.
A judge has ruled that the city denied due process to 1.5 million motorists by failing to send those drivers a second notice of their violations.
The Emanuel administration further erred by imposing $100 late fees when payment was not received within 21 days of a liability determination in some cases — even after the law was changed in 2012 to require a 25-day grace period.
On Wednesday, aldermen agreed to correct those errors, hoping it will bolster the city’s case against a lawsuit with the potential to force the city to refund $200 million in fines and late fees dating back to the 2003 inception of the scandal-scarred red-light camera program.
Roughly 1.5 million motorists slapped with mostly red-light and a smaller number of speed camera tickets between March 23, 2010, and May 14, 2015, will get the second notice they should have received the first time.
Those who choose to do so within 30 days will have the opportunity to appear before an administrative hearing officer and challenge their tickets on grounds they were issued in error.
Historically, only 5 percent of motorists confronted with photographic proof of their red-light running or speeding violations choose to challenge those tickets. And of that 5 percent, only 10 percent prevail. That’s one-half of 1 percent.
“If past is prologue, a very small number will take the second chance,” corporation counsel Steve Patton has said, noting that those who fail will be responsible for paying the late fee in addition to the ticket.
“They’re the half that ignored that first notice. We’re not talking about the half that did. They paid their tickets. And nobody’s talking about them getting any refund. It’s only the people that blew off and did not respond to the first notice.”
The five-year window is tied to the statute of limitations and the date the city eliminated the second notice requirement in yet another, after-the-fact attempt to avoid liability.
The ordinance would also allow roughly 5,000 motorists who paid late fees too soon — even after the window to do so was stretched to 25 days — to get $100 refunds for those penalties paid in error. Those motorists would be given 60 days to make that request.
Patton has argued that the ordinance will “bolster our defense” of the pending lawsuit and “form the basis for a fair and reasonable settlement.” But he has maintained that a “procedural failure does not render a ticket invalid” and that there is no justification for blanket refunds.
“Those tickets are valid. The violation occurred. The red light was run. Somebody sped — unless and until they go the Department of Administrative Hearings and show that’s not the case,” Patton told aldermen earlier this week.
“What we’re talking about is a subsequent procedural error. And it shouldn’t be the opportunity for a gotcha to have a windfall for thousands and thousands of people to avoid any liability and get a refund. It is the failure to give a notice. What we’re now trying to do is provide that notice and a second bite at the apple with all of the rights those folks had initially.”
Attorneys Myron Cherry and Jacie Zolna, whose lawsuit against the city forced the city’s hand, have branded the ordinance “too little, too late” and say it will invite more litigation and “add another chapter” to a red-light program built on a $2 million bribery scandal.
“It’s a bad day when the city uses the legislative process to influence the court system. If that’s allowed to happen, look out for democracy,” Cherry told aldermen this week.
Cherry has noted that ex post facto laws are prohibited by the U.S. Constitution, yet the mayor’s ordinance “tries to do exactly that.”
“Make no mistake about it, if an alderman votes for this ordinance, his citizens are being disadvantaged as to rights they already have. That’s not democracy,” Cherry has said.
Zolna has called the mayor’s ordinance a “misguided effort to cover up illegal conduct for last decade” that denied motorists their constitutional rights.
“It won’t work. If anything, it will invite more litigation,” Zolna said.
Arguing that the red-light camera program was “born of corruption” and operated illegally, Zolna told aldermen, “It’s difficult to imagine the taint ever being washed away. This ordinance would add another chapter to this scandal scarred program. This committee is being asked to take sides against people who represent them. It’s a farce and a cover-up at their expense.”
Zolna has said he is open to negotiating a settlement of the lawsuit he filed, but only if it includes some form of financial damages.
“The city will have to compensate in some way the people affected by the illegal practices that have gone on for more than a decade,” Zolna has said.
Pressed to outline the parameters of a settlement, Zolna has said, “There are a lot of good ideas we have that we would share with the city that would allow people to be compensated in some reasonable way without bankrupting the city. Something less than a full refund.”
Cherry has said he has approached the city with an offer to reduce its liability by as much as 75 percent.
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 in a way that denied motorists their due process rights.
Technically, Circuit Judge Kathleen Kennedy simply rejected the city’s motion to the 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 will ultimately be nullified, potentially forcing the city to refund hundreds of millions of dollars in fines and penalties already paid.