Ten Things Municipal Officials Should Know About Local Prosecution and Ordinance Enforcement

by Scott Puma and John Christensen

Local prosecution on behalf of a unit of local government is far ranging and covers everything from the prosecution of violations under the Illinois Vehicle Code to enforcement of local ordinances. Discussed below are ten items that may be of assistance in understanding the scope of authority available to units of local government in pursuing local prosecution and ordinance enforcement.

1. Does a Municipality Have Authority to Prosecute State Traffic Violations Under the Illinois Vehicle Code?
Municipalities throughout the state are able to select attorneys to prosecute municipal ordinance violations. In some communities the police are instructed to write complaints under the state statute even when there are local ordinances covering the same offenses. Section 625 ILCS 5/16-102(c) of the Illinois Vehicle Code provides:

"The State's Attorney of the County in which the violation occurs shall prosecute all violations except when the violation occurs within the corporate limits of a municipality; [then] the municipal attorney may prosecute if written permission to do so is obtained from the State's Attorney."

Thus, two initial criteria must be satisfied for a unit of local government to prosecute cases under the Vehicle Code. First, the violation must have occurred within the corporate limits. Second, the State's Attorney must provide the unit of local government with written permission to prosecute the offense.

There are some counties, such as Cook County, where the State's Attorney has declined to give units of local government authority to prosecute violations under the Vehicle Code. However, in a number of other Counties, the State's Attorneys have granted this authority when requested by the units of local government. This authority is usually set forth in a letter from the State's Attorney to the unit of local government granting authority pursuant to Section 16-102 of the Vehicle Code to prosecute violations occurring within the corporate limits, subject to certain statutory limitations, some of which are discussed in more detail below.

2. Can a Unit of Local Government Prosecute Traffic Violations Under its Local Ordinances Where Authority has been Denied by the State's Attorney Under Section 5/16-102?
A unit of local government may adopt by reference all or part of the Vehicle Code as a local ordinance and prosecute violations of the adopted local ordinance. This authority to prosecute does not require written permission from the State's Attorney under Section 16-102 of the Vehicle Code because the municipal prosecutor is enforcing a local ordinance, not the provisions of the Vehicle Code. In the alternative, a municipality may adopt its own ordinances prohibiting such things as disregarding traffic control devices, but it is much easier to approve an ordinance adopting the Vehicle Code in its entirety as a local ordinance. In general, this authority is limited to misdemeanor and petty traffic offenses that occur within the corporate limits.

3. Can a Unit of Local Government Prosecute a Felony DUI Under the Vehicle Code?
A unit of local government does not have the authority to prosecute a felony DUI under the Vehicle Code, and as such is limited to prosecuting misdemeanor DUIs. The question arises, however, whether the unit of local government can prosecute a DUI that has been initially charged as a misdemeanor but which is felony eligible. Under a series of laws adopted in recent legislative sessions, a unit of local government, including a home rule unit, may not enforce any ordinance that prohibits DUI if, based on the alleged facts of the case or the defendant's driving history or record, the offense charged would constitute a felony under 625 ILCS 5/11-501, unless the State's Attorney rejects or denies felony charges for the DUI.

Likewise, Sections 11-208.5 of the Vehicle Code limits the power of a local authority to enact or enforce any ordinance or rule with respect to the streets or highways under its jurisdiction relating to DUIs to the enactment or enforcement of ordinances or rules the violation of which would avoid prosecution of DUIs as felonies or misdemeanors under the Vehicle Code. In other words, a municipality may not create its own system of DUI violations by ordinance to avoid the mandatory provisions of the Illinois Vehicle Code. Section 11-208.5 also provides that a municipality may not enact or enforce any ordinance or rule which would constitute a felony under Section 11-501, and requires that a municipal attorney who is aware that, based on a driver's history, the driver is subject to prosecution for a felony under Section 11-501 must notify the State's Attorney of the driver's conduct and may not prosecute the driver on behalf of the municipality. However, under Section 11-208.5(b), the municipality may charge an offender with a municipal misdemeanor offense if the State's Attorney rejects or denies felony charges for the conduct that comprises the charge.

Under Section 16-102 of the Vehicle Code, the State's Attorney may not grant to the municipal attorney permission to prosecute if the offense charged is a felony under Section 11-501. Like Section 11-208.5(b), under Section 16-102 the municipality may, however, charge an offender with a municipal misdemeanor offense if the State's Attorney rejects or denies felony charges.

In sum, while municipal attorneys may not prosecute felony DUI cases, they can prosecute a felony eligible DUI case as a misdemeanor violation if the State's Attorney has declined to prosecute the case as a felony.

4. Can a Municipality Prosecute its Own Ordinance Violations Outside the Court System?
Municipalities have been given the statutory authority to provide for administrative adjudication of Municipal Code violations. This authority for home rule units is set forth in 65 ILCS5/1-2.1-1 et seq., and for non home rule units, 65 ILCS 5/1- 2.2-1 et seq. Both Sections exclude from administrative adjudication any offense under the Vehicle Code that is a traffic regulation governing the movement of vehicles or for any reportable offense under Section 6-204 of the Vehicle Code. Municipalities often find it is easier to obtain compliance for building code and property maintenance code violations by establishing an administrative adjudication program.

If the municipality is home rule, the ordinance establishing a system of administrative adjudication must provide for a code hearing unit within an existing agency or as a separate agency in the municipal government. 65 ILCS 5/1-2.1-4. There are similar requirements for non-home rule units. Adjudicative hearings must be presided over by hearing officers, who are hired by the municipality. The hearing officers must complete a formal training program meeting the requirements of 65 ILCS 5/1-2.1-4(c) and must be an attorney licensed to practice law in the State of Illinois for at least three (3) years. 65 ILCS 5/1-2.1-4. Certain restrictions are placed on the hearing officer's authority. In particular, the hearing officer cannot impose a penalty of incarceration, or impose a fine in excess of $50,000, or at the option of the municipality, such other amount not to exceed the maximum amount established by the Mandatory Arbitration System as prescribed by the Supreme Court from time to time for the judicial circuit in which the municipality is located. 65 ILCS 5/1-2.1-4(b)(5). The ordinance establishing a system of administrative adjudication must afford parties due process of law, including notice and an opportunity for a hearing during which they may be represented by counsel, present witnesses, and cross-examine opposing witnesses. This Act does not preempt municipalities from adopting other systems of administrative adjudication pursuant to their home rule powers. 65 ILCS 5/1-2.1-10.

While different procedures are available for the implementation of a system of administrative adjudication depending on the type of code violation or the status of the municipality as a home rule or non home rule entity, these procedures all provide a municipality with an alternative to court litigation which is often a more expeditious and cost effective way to deal with ordinance enforcement.

5. Can a Municipality Prosecute Parking Tickets Through its Own System of Administrative Adjudication?
Subject to certain procedure municipalities are given the authority to establish a system of administrative adjudication to prosecute parking tickets in Section 11-208.3 of the Vehicle Code. This Section provides that any municipality may provide by ordinance for a system of administrative adjudication of vehicular standing and parking violations and vehicle compliance violations as defined therein. The administrative adjudication system shall have as its purpose the fair and efficient enforcement of municipal regulations through the administrative adjudication of violations of municipal ordinances regulating the standing and parking of vehicles, the condition and use of vehicle equipment, and the display of municipal wheel tax licenses within the municipal borders. The authority under Section 11-208.3 is limited to the adjudication of civil offenses carrying fines not in excess of $250 that occur after the effective date of the ordinance adopting this Section.

Section 11-208.3(c) authorizes a municipality to provide by ordinance for a program of vehicle immobilization for the purpose of facilitating the enforcement of its vehicular standing, parking, and compliance regulations.

6. Does a Municipality Receive More Fine Money if it Files its Traffic Offenses (speeding, etc.) as Ordinance Violations Rather Than State Violations Under the Vehicle Code?
There are several benefits when a municipality files an ordinary traffic offense such as speeding as an ordinance violation rather than a violation under the State statutes; unfortunately fine money is not one of them. The key factor is whether the official writing the charge was a municipal official.

Procedurally, when an ordinance violation is filed with the Court Clerk's office, the clerk enters the citation into the computer and assigns that citation a file number. That file number gets its designation from the particular type of case that is filed. The statutes and case law mandate that when a person is charged with a traffic (speeding, etc.) ticket that the Illinois Secretary of State monitor all of those offenses, even those offenses that are filed as ordinance violations. As a result, it makes no difference to the clerk whether that speeding ticket was written under a local ordinance or whether it is written under the Illinois Vehicle Code. That citation will be treated as if it is written under the Vehicle Code and it will be reported to the Secretary of State. The end result, relative to the apportionment of fine money is that the same amount will go to the municipality without regard to whether the case is written as an offense under the Illinois Vehicle Code or under a local ordinance.

However, there are other benefits to filing these charges as Ordinance violations. These benefits include the inherent ability to prosecute these charges without the permission from the State's Attorney because an Ordinance violation is treated as a civil complaint by the courts, the burden of proof is lower (meaning it is easier to establish that the offender committed the violation) and the municipality may adopt mandatory minimum fines for offenses provided that its fine system does not conflict with the State Statute.

7. Is it Better to Have the State Prosecute DUIs and Misdemeanor Violation of the Vehicle Code or to Hire a Local Prosecutor?
There are some important benefits to prosecuting DUIs and misdemeanor violations of the Vehicle Code with a local prosecutor. The main benefit to prosecuting these offenses with a local prosecutor is that the prosecutor works for you. While the local prosecutor maintains his or her own integrity and prosecutorial discretion, he or she can help the municipality carry out its prosecution philosophy, such as mandatory fines or no leniency for certain offenses.

The local prosecutor can also help the police department budget by controlling the court scheduling of the police officers. Often times a local prosecutor can save a police department money in overtime pay and help maintain proper and adequate police coverage for the municipality by only calling officers to court when absolutely necessary. They can do this through negotiating with the defense attorneys to settle cases where the burden of proof would be difficult or impossible to meet. The municipality would have much less control over the decision, in the proper case, to offer incentives to the defendant to plead guilty to a lesser charge and to push for special sentences such as treatment for drug and alcohol addiction, attendance at victim impact counseling, and donations to organizations which help prevent drivers from getting behind the wheel while intoxicated.

8. This is Getting Expensive. Can We Ever Get the Other Party to Pay Out Attorneys' Fees?
Yes, effective January 1, 2008, a city or village may be able to recover its attorneys' fees and costs when someone defaults in payment of a fine or an installment of a fine. 65 ILCS 5/1-2-1. The statute authorizes the municipal attorney of the municipality in which the fine was imposed to retain attorneys and collection agents for the purpose of collecting the fines which are due. Any fees or costs incurred with respect to attorneys or private collection agents retained by the municipal attorney are to be charged to the offender.

Interestingly, this provision allows a municipal attorney to engage other attorneys or collection agents rather than giving this authority to the corporate authorities of the municipality. Presumably, the municipal attorney would only engage other attorneys and collection agents with the prior approval of the municipality.

It is most likely that this statute will be utilized to collect fines imposed under an administrative adjudication system or to collect parking ticket fines. In some cases, the statute could also be utilized to collect stale fines which are deemed uncollectible by the courts.

This statute appears to have been written by collection lawyers because it does not authorize the recovery of the regular municipal attorneys' fees incurred in collecting fines. Those municipalities which have existing agreements with attorneys or collection agents should consult with their municipal attorneys to determine whether the collection agreements should be re-executed under the authority of the municipal attorneys in order to collect attorneys' fees and costs in addition to the outstanding fines.

9. My Municipality Has Several Properties That Have Junk and Debris Scattered About Them and We Can't Get the Owners to Clean Up the Property. Can We Clean Up the Property, and Who Pays for the Clean-Up?
Yes, the Municipal Code (65 ILCS 5 et seq.) contains provisions to clean up dilapidated property in two different Sections. Section 11-20-13 of the Municipal Code provides that the corporate authorities of each municipality may provide for the removal of garbage, debris, and graffiti from private property when the owner of such property, after reasonable notice, refuses or neglects to remove such garbage, debris, and graffiti and may collect from such owner the reasonable cost thereof except in the case of graffiti. This cost is a lien upon the real estate affected, superior to all subsequent liens and encumbrances, except tax liens, if within 60 days after such cost and expense is incurred the municipality, or person performing the service by authority of the municipality, in his or its own name, files notice of lien in the office of the recorder in the county in which such real estate is located. However, the lien of the municipality is not valid as to any purchaser whose rights in and to such real estate have arisen subsequent to removal of the garbage and debris and prior to the filing of such notice, and the lien of such municipality is not valid as to any mortgagee, judgment creditor or other lien or whose rights in and to such real estate arise prior to the filing of such notice. Upon payment of the cost and expense by the owner of or persons interested in such property after notice of lien has been filed, the lien shall be released by the municipality or person in whose name the lien has been filed and the release may be filed of record as in the case of filing notice of lien. The lien may be enforced by proceedings to foreclose as in case of mortgages or mechanics' liens. An action to foreclose this type of lien is required to be commenced within 2 years after the date of filing the notice of lien.

Additionally, the Municipal Code at Section 11-60-2 provides that the Corporate Authority of each municipality may define, prevent and abate nuisances. The power granted a municipality under Section 11-60-2 is broad, although not unrestricted. Nuisances have been defined in such categories as unsafe or unfit structures and premises, nuisances dangerous to health (odors, garbage and sanitation problems), and chronic nuisances (i.e. any real property to which the police department has responded, at least three times in any consecutive 90-day period, and on each response has found nuisance activity or multiple instances of nuisance activity). Historically, the Illinois Supreme Court has set forth three classifications in determining the power of a municipality to conclusively determine what a nuisance at common law is:

a) those that in their nature are nuisances per se or are so denounced by the common law or by statute (a municipality may conclusively denounce these as nuisances);

b) those that in their nature are not nuisances but may become so by reason of their locality, their surroundings, or the manner in which they may be conducted, managed, etc. (a municipality may declare such of them to be nuisances as are in fact so); and

c) those that in their nature may be nuisances but as to which there may be honest differences of opinion in impartial minds (a municipality may conclusively denounce these as nuisances).

The legal remedies that are available to abate nuisances are the imposition of a monetary penalty, and municipalities can also provide for their own summary abatement procedures. This abatement can also be obtained with the use of the court and an Administrative Search Warrant which would allow the municipality to enter the property to remove or abate the nuisance. The municipal prosecutor is typically best suited to bring lawsuits of this type.

10. What Are Some Other Area Where the Statute Allows Municipalities to File Suits to Enforce Their Rights or Ordinances?
Set out below are some of the common police powers granted by statute:

1. Declare curfew (Code §11-1-5);
2. Provide for emergency power of the mayor (Code §11-1-6);
3. Conduct juvenile delinquency prevention programs (Code §11-1-8);
4. Suppress bawdy and disorderly gambling houses, houses of ill fame, and obscene literature (Code §11-5-1);
5. Prevent or suppress riots, disturbances, noises, trespasses, and disorderly assemblies in public or private places (Code §11-5-2);
6. Prevent intoxication, fighting, quarreling, dog fights, cock fights, and all other disorderly conduct (Code §11-5-3);
7. Prevent vagrancy, begging, and prostitution (Code §11-5-4);
8. Prohibit parking of motor vehicles on private property without consent of the owner (Code §11-5-5);
9. Prohibit cruelty to animals (Code §11-5-6);
10. Regulate mobile homes and house trailers (Code §11-5-8);
11. Provide youth and senior funding and services (Code § §11-5.2-2 through 11-5.2-4);
12. Regulate for fire safety (Code § §11-8-1 through 11-8-6);
13. Regulate conditions causing and abate air pollution (Code §11-19.1-11);
14. Regulate and establish markets and market houses (Code §11-20-1);
15. Regulate the sale of all beverages and food for human consumption (Code §11-20-2; see also 410 ILCS 635/4, 635/19 (milk), and 225 ILCS 650/4 (meat and poultry) for state minimum standards and preemption);
16. Regulate and inspect all food for human consumption and tobacco (Code §11-20-3; see also 410 ILCS 635/4, 635/19, and 225 ILCS 650/4 for state minimum standards and preemption);
17. Provide for cleansing and purification of water and drainage of ponds and prevent or abate a nuisance by draining and filling ponds on private property (Code §11-20-4);
18. Do acts and make regulations that are necessary or expedient for promotion of health and suppression of disease (Code 11-20-5);
19. Provide for destruction of weeds on private property, lien for cost of removing same (Code § §11-20-6, 11-20-7);
20. Provide for extermination of rats, lien for costs of exterminating same (Code §11-20-8);
21. Regulate and prohibit running at large of horses, asses, mules, cattle, swine, sheep, goats, geese, and dogs (Code §11-20-9);
22. Regulate construction, repair, and use of cisterns, cesspools, pumps, culverts, and drains and sealing of wells and cisterns (Code §11-20-10);
23. Provide for removal of garbage and debris from private property, lien for costs of removing same (Code §11-20-13);
24. Regulate fences and party walls (Code §11-30-1);
25. Regulate construction of buildings in areas that flood (Code §11-30-2);
26. Regulate use and construction of rooming houses (Code §11-30-3);
27. Regulate strength and manner of construction of buildings and fire escapes (Code §11-30-4);
28. Regulate grading and draining of lots and construction of paving for driveways and parking areas, terraces, and retaining walls (Code §11-30-8);
29. Regulate private swimming pools (Code §11-30-9);
30. Demolish and repair unsafe buildings, lien for costs of same (Code § §11-31-1 through 11-31-2);
31. Provide for building code hearings and procedures (Code § §11-31.1-1 through 11-31.1-11.1);
32. Regulate installation and maintenance of heating, air-conditioning, and refrigeration and contractors for same (Code §11-32-1);
33. Provide for registration of electrical contractors (Code §11-33-1);
34. Regulate steam boilers and elevators and persons having charge of same (Code §11-34-1);
35. Regulate electrical equipment installation, use, and alteration (Code §11-37-1);
36. Regulate motor vehicles on city streets (Code §11-40-1; see 625 ILCS 5/11-207, 5/11-208, 5/11-208.1, 5/11-209, and 5/11-209.1 for preemption);
37. Declare junk cars as nuisances (Code §11-40-3);
38. Regulate certain enumerated businesses and activities (Code § §11-42-1 through 11-42-14);
39. Establish and regulate cemeteries (Code §11-49-1);
40. Regulate the weighing and measuring of certain enumerated items (Code §11-53-1);
41. Provide for inspection and sealing of weights and measurements (Code §11-53-2);
42. Regulate athletic contests (Code §11-54-1);
43. Grant permits for carnivals (Code §11-54.1-1);
44. Define, prevent, and abate nuisances (Code §11-60-2);
45. Regulate streets and public ways (Code §11-80-2; see 625 ILCS 5/11- 207, 5/11-208, 5/11-208.1, and 5/11-209 as to preemption);
46. License and regulate street advertising and adult entertainment advertising (Code §11-80-15);
47. Regulate boats and harbors (Code § §11-92-3, 11-104-1, 11-104-2, 11-104-3); and
48. Regulate conditions causing and abate water pollution (Code § §11-125-2, 11-125-3, 11-129-1).

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