City’s defense in cellphone tickets lawsuit could backfire: attorney

SHARE City’s defense in cellphone tickets lawsuit could backfire: attorney

A lawyer suing the city over tickets for distracted driving says a new legal defense the city is asserting could actually be good news for the plaintiffs. | Sun-Times file photo

Chicago is defending itself against a lawsuit seeking refunds for motorists issued cellphone tickets in a way that could open the city up to even more liability.

In a motion to dismiss the complaint, Mayor Rahm Emanuel’s administration has argued that tens of thousands of distracted driving tickets issued since 2005 were actually “equipment violations” — not moving violations that are “reportable” offenses.

But if the citations were, in fact, equipment violations, then motorists slapped with those tickets were entitled to a second notice, which the city never sent, said attorney Jacie Zolna.

The city had made that argument in order to justify its decision to take the cases to administrative hearings officers, instead of to Traffic Court, where the lawsuit, filed in August, claimed those violations belonged. Administrative adjudication of $100 tickets issued to motorists accused of talking on their cellphones or texting behind the wheel also allowed the city to avoid sharing 55 percent of the revenue with the county and state.

Zolna said the city’s legal argument “literally doubles its exposure” to claims dating all the way back to 2005, when the distracted driving ordinance was passed. It also creates a whole new set of legal problems for the city.

If a judge buys Zolna’s argument and certifies the lawsuit as a class-action, the city also could be forced to refund millions of fines dating back to 2005.

SNEED: Lawsuit claims city’s distracted-driving tickets are illegal

The law governing equipment violations further requires the schedule of fines to be capped at $250. The city’s fine scale rose to $1,000 for those who chose to contest their tickets and lost.

For equipment violations, the city’s municipal code also requires the notice to include the state registration number of the vehicle driven. The city never followed that step, either.

And even if the city can justify sending the cases to the Department of Administrative Hearings, they should have been routed to the vehicle division — not the municipal division, he said.

According to Zolna, the city also poked holes in its own argument that the distracted driving ordinance was about public safety, not raising revenue.

In its motion to dismiss, the city acknowledged it never reports motorists convicted of distracted driving to the Illinois Secretary of State. That impedes the state’s ability to suspend the driver’s licenses of motorists convicted of repeat offenses.

In late July, the City Council signed off on a $38.75 million settlement that offers 50 percent refunds to 1.2 million motorists issued red-light and speed camera tickets.

That earlier group of motorists were denied due process when the city failed to send them a second notice of violation that had been required until May 2015, when aldermen changed the law after-the-fact to correct the legal oversight.

In that case, late fees of $100 also were imposed on those motorists four days too soon.

Zolna argued that the distracted driving lawsuit could yield a similar settlement because the city made similar due-process mistakes and changed the law after-the-fact in 2015 in an apparent attempt to cover its tracks.

Law Department spokesman Bill McCaffrey issued an emailed response to Zolna’s argument, expected to be included in an amended complain filed later this week.

“While we have not yet received an amended complaint, it is evident that the City’s motion to dismiss plaintiffs’ initial complaint strongly rebutted their legal theory and they are now trying to salvage their claims. The City fully intends to continue our vigorous defense of this suit,” McCaffrey wrote.

The original lawsuit sought refunds for $100 tickets issued for texting and talking on a cellphone while driving since January 2010. That’s when a state law took effect requiring that distracted driving citations go to Traffic Court.

The amended lawsuit seeks refunds dating to 2005, when the City Council first prohibited motorists from talking on their cellphones while driving, unless they use a hands-free device.

“The city has been making these mistakes all the way back to 2005 — twice as long as our original lawsuit,” Zolna said Wednesday.

“In short, the city did not follow either law – those applicable to reportable offenses or those applicable to equipment violations – so the city is in the wrong either way.”

Zolna argued that the “real scandal” is that the city “sold the safety of its citizens for money.”

“If they sent these tickets to Traffic Court where they belong, they would have been reported to the Secretary of State, who would have revoked the license of dangerous drivers,” Zolna said.

“Doing that, however, would require the city to share the fines with the state and county. … The city only keeps 45 percent in Traffic Court. By funneling these tickets through its own administrative court system, the city got to keep all the money. But the result was that offenses did not get reported and dangerous drivers were able to remain on the street.”

In 2014 alone, the city issued 45,000 distracted driving tickets.

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