                                        2017 IL App (1st) 133159

                                                                                SIXTH DIVISION
                                                                                December 8, 2017

                                          No. 1-13-3159


                                         IN THE 

                              APPELLATE COURT OF ILLINOIS

                                FIRST JUDICIAL DISTRICT



STONE STREET PARTNERS, LLC, a/k/a PMD,                      )   Appeal from the Circuit Court of
Individually and on Behalf of All Others Similarly          )   Cook County.
Situated,                                                   )
                                                            )
       Plaintiff-Appellant,                                 )
                                                            )
v.                                                          )
                                                            )
THE CITY OF CHICAGO, THE CITY OF CHICAGO                    )   No. 12 CH 10860
DEPARTMENT OF ADMINISTRATIVE HEARINGS,                      )
PATRICIA JACKOWIAK, Director, Department of                 )
Administrative Hearings; THE CITY OF CHICAGO                )
DEPARTMENT OF STREETS AND SANITATION;                       )
THOMAS G. BYRNE, Commissioner of the City of                )
Chicago Department of Streets and Sanitation,               )
                                                            )   Honorable LeRoy K. Martin,
       Defendants-Appellees.                                )   Judge Presiding.


       JUSTICE DELORT delivered the judgment of the court, with opinion.
       Presiding Justice Hoffman and Justice Connors concurred in the judgment and opinion.

                                                OPINION

¶1     In an earlier case, Stone Street Partners, LLC (Stone Street), challenged certain practices

of the City of Chicago Department of Administrative Hearings (Department). See Stone Street

Partners, LLC v. City of Chicago Department of Administrative Hearings, 2017 IL 117720.

Stone Street won a partial victory, and the judgment against it was vacated. In this appeal,

stemming from a different citation which the City of Chicago (City) issued, Stone Street presents
No. 1-13-3159


other challenges to the Department’s practices. The circuit court rejected these challenges. We

affirm.

¶2                                          BACKGROUND

¶3        On January 17, 2012, the City of Chicago Department of Streets and Sanitation (DSS)

issued an administrative notice of ordinance violation against an entity named PMD regarding

property located at 34 East Oak Street in Chicago. 1 The notice stated: “[i]mproperly contained

refuse exist [sic] at this location.” It alleged that Stone Street violated section 7-28-261 of the

Chicago Municipal Code, which provides:

                        “(a) No person shall deposit refuse in a standard or

                 commercial refuse container, or compactor, in a manner that

                 prevents complete closure of the container’s cover, or deposit

                 refuse on top of a container in a manner that interferes with

                 opening of the container, or pile or stack refuse against a container.

                        (b) The owner, his agent or occupant of a property shall not

                 allow any person to violate subsection (a) of this section. The

                 presence of refuse preventing complete closure of the container’s

                 cover, deposited on or piled or stacked against a standard refuse

                 container, a commercial refuse container, or compactor shall be

                 prima facie evidence of violation of this subsection (b).

                        (c) Any person who violates any provision of this section

                 shall be fined not less than $200.00 and not more than $500.00 for

                 each offense. Each day that a violation continues shall constitute a

          1
         In its complaint, Stone Street alleges that it is also known as PMD and that it is the owner of the
property at 34 East Oak Street. Thus, for simplicity, we refer to Stone Street as the respondent in the
administrative proceeding below.
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No. 1-13-3159


                separate and distinct offense.” Chicago Municipal Code § 7-28­

                261 (amended July 7, 1999).

¶4     On February 23, 2012, an attorney for Stone Street appeared before the Department to

contest the notice. According to Stone Street’s complaint, before the hearing began, Pamela

Harris, the administrative law judge (ALJ) who heard Stone Street’s case,

                “stated to everyone in the courtroom that no representative from

                the City was available to discuss or pre-try the cases. ALJ Harris

                stated that she had the authority to impose the minimum penalty

                permitted under the Municipal Code should anyone plead liable to

                the charges. ALJ Harris indicated in no uncertain terms that a trial

                tax would be imposed if anyone exercised their rights to a hearing

                and was found guilty. ALJ Harris made it clear to the entire

                courtroom that they would not receive the minimum fine if they

                proceeded to a hearing and were found guilty.”

¶5     When Stone Street’s hearing commenced, the ALJ tendered two photographs to Stone

Street’s attorney depicting a trash can bearing the letters “PMD” that was so filled with garbage

that the lid could not close. The attorney objected to the introduction of these photographs on the

basis that the City failed to produce them in response to a Freedom of Information Act request he

had propounded on the City before the hearing. The ALJ admitted the photographs into evidence

over this objection and found that the City had established a prima facie case of an ordinance

violation.

¶6     In response, Stone Street’s attorney objected to the entire proceeding on the basis that the

City was engaging in the unauthorized practice of law because no attorney appeared for the City.



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No. 1-13-3159


The ALJ rejected this argument and found Stone Street liable. The ALJ then assessed a $300

fine, which was $100 more than the minimum, and a $40 fee and entered judgment against Stone

Street for $340. Stone Street’s complaint does not allege that its attorney specifically objected to

the imposition of a fine greater than $200.

¶7     On March 26, 2012, Stone Street filed a four-count “Class Action & Administrative

Review Complaint.” The complaint alleged generally that the City “filed, appeared, and

prosecuted” the case against Stone Street “without a licensed attorney in violation of Illinois

law.” It further alleged that, because the City “appeared and prosecuted the case without an

attorney, the proceedings are null and void as a matter of law.” According to Stone Street, “[t]he

City’s policy and practice of prosecuting these types of cases without a licensed attorney has

affected, and continues to affect, thousands of individuals and entities.”

¶8     In count I, Stone Street sought declaratory and injunctive relief “invalidating all fines,

penalties, orders and judgments where the city appeared without a licensed attorney” on behalf

of a class. Stone Street also sought a declaration that “the City of Chicago’s practice of

permitting an ALJ to act as both judge and prosecutor” violated its right to due process under the

federal and Illinois constitutions.

¶9     In count II, Stone Street alleged that the ALJ who heard Stone Street’s case stated that,

while she was authorized to impose the minimum fine on anyone who entered a plea to liability,

she would impose what Stone Street characterized as a “trial tax” by imposing more than the

minimum fine on anyone who opted to proceed with a contested hearing. Stone Street requested

a declaration that “the custom and practice of penalizing litigants for exercising their right to a

contested hearing violates due process” and “[i]njunctive relief requiring that this practice cease

and desist.”



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No. 1-13-3159


¶ 10   Count III was a claim under the Freedom of Information Act, 5 ILCS 140/1 et seq. (West

2012). Count IV was a complaint for administrative review of the Department’s decision.

¶ 11   On September 11, 2012, defendants filed a motion to dismiss counts I, II, and III pursuant

to section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2012)).

After a hearing, the court dismissed count II, finding that Stone Street failed to state a

“cognizable claim for violation of due process.” In reaching that conclusion, the court drew an

analogy between the ALJ’s statements and the plea bargaining process in a criminal case, stating:

                “[I]t happens everyday *** that some judge somewhere in this

                County is saying to a defendant if you plead guilty I will give you

                probation. However, if you go to trial, Mr. Defendant, ***

                probation is off the table. That is perfectly acceptable and it

                happens everyday in this County. *** In this particular instance the

                ALJ indicated that if one accepts responsibility and admits to a

                violation, *** it was her habit to give the minimum fine. ***

                However, she says if there is a finding that you violated, then I’m

                not going to give you the minimum fine. And I don’t think that to

                be a [violation] of one’s due process right.”

With respect to count I, the court stated, “I just don’t see this as the unauthorized practice of law.

I just think that we really don’t have a justiciable declaratory action here.” At the conclusion of

the hearing, the court dismissed counts I and II with prejudice. The same day, Stone Street

withdrew count III.

¶ 12   Count IV, Stone Street’s claim for administrative review, remained pending. On August

14, 2013, the circuit court resolved that claim by denying Stone Street’s petition for



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No. 1-13-3159


administrative review and affirming the ALJ’s finding of liability as to the ordinance violation.

This appeal followed.

¶ 13                                        ANALYSIS

¶ 14   Although defendants filed a combined motion to dismiss pursuant to section 2-619.1 of

the Code, the parties agree—and the record confirms—that the circuit court dismissed counts I

and II for failure to state a cause of action pursuant to section 2-615 of the Code. See 735 ILCS

5/2-615, 2-619.1 (West 2012)). A section 2-615 motion challenges the legal sufficiency of the

complaint. Ferris, Thompson & Zweig, Ltd. v. Esposito, 2017 IL 121297, ¶ 5. “When reviewing

whether a motion to dismiss under section 2-615 should have been granted, we accept as true all

well-pleaded facts and all reasonable inferences that may be drawn from those facts.” Id. “The

critical inquiry is whether the allegations of the complaint, when considered in a light favorable

to the plaintiff, are sufficient to state a cause of action upon which relief may be granted.”

Schweihs v. Chase Home Finance, LLC, 2016 IL 120041, ¶ 27. We review a circuit court’s

dismissal of a complaint pursuant to section 2-615 de novo. Id.

¶ 15   We first consider whether the court properly dismissed count I, which sought a

declaratory judgment that (1) the City engaged in the unauthorized practice of law by not having

an attorney present to prosecute ordinance violations at hearings before the Department and (2)

as a result, any and all fines that were imposed as a result of such hearings were null and void. In

addition, Stone Street contends, as a corollary to this claim, that because no attorney appeared for

the City at the hearing, the City essentially conscripted the ALJ into service as both judge and

prosecutor, thereby violating Stone Street’s right to due process. We consider each of these

contentions in turn.




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No. 1-13-3159


¶ 16   In Illinois, it is “unlawful for a corporation to practice law or appear as an attorney at law

for any reason in any court *** or before any judicial body.” 705 ILCS 220/1 (West 2012). This

rule applies equally to private and municipal corporations. Housing Authority of the County of

Cook v. Tonsul, 115 Ill. App. 3d 739, 742 (1983), abrogated on other grounds, Downtown

Disposal Services, Inc. v. City of Chicago, 2012 IL 112040. “ ‘Practicing law’ has been defined

as ‘Practicing as an attorney or counselor at law, according to the laws and customs of our

courts, is the giving of advice or rendition of any sort of service by any person, firm or

corporation when the giving of such advice or rendition of such service requires the use of any

degree of legal knowledge or skill.’ ” People ex rel. Illinois State Bar Ass’n v. Schafer, 404 Ill.

45, 50-51 (1949).

¶ 17   As this definition implies, there can be no practice of law unless an actual person engages

in an undertaking that requires legal knowledge or skill. See id. at 53-54 (holding that a real

estate broker who prepared deeds, contracts, and mortgages relating to real estate transactions

was engaged in the unauthorized practice of law); accord King v. First Capital Financial

Services Corp., 215 Ill. 2d 1, 36 (2005) (“[W]e hold that where the defendant lenders prepared

the subject loan documents, through their employees, they did not engage in the unauthorized

practice of law by charging a fee.” (Emphasis added.)). This is all the more true in the case of

corporations, because “[c]orporations can only act through their agents.” Alpha School Bus Co.

v. Wagner, 391 Ill. App. 3d 722, 737 (2009); see Tonsul, 115 Ill. App. 3d at 742 (“Municipal

corporations, like their business counterparts, are soulless and inanimate, and when an agent

undertakes to practice law on behalf of such a principal, he must be licensed to do so.”

(Emphasis added.)).




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No. 1-13-3159


¶ 18   Based on the foregoing, as a matter of law, the City can only practice law through an

agent, i.e., a natural person. By logical extension, the only way the City could engage in the

unauthorized practice of law is by causing one of its agents who is not admitted to practice law in

this state to (1) give advice or (2) render services that (3) “require[ ] the use of any degree of

legal knowledge or skill.” Schafer, 404 Ill. at 50-51.

¶ 19   Count I alleges nothing of this sort. Rather than allege that the City caused a nonattorney

agent to perform legal work, Stone Street instead accuses the City of doing the impossible:

engaging in the practice of law during a hearing in which no one appeared on its behalf. See

Small v. Sussman, 306 Ill. App. 3d 639, 645-46 (1999) (noting that it is a “legal impossibility”

for a corporation to participate in a breach of fiduciary duty because “[c]orporations can only act

through their agents”). Because Stone Street has not alleged that an actual person acting on

behalf of the City engaged in the unauthorized practice of law, count I fails to state a valid claim.

¶ 20   As a corollary to this line of argument, Stone Street contends that the ALJ served as both

judge and prosecutor. This, Stone Street contends, violated its due process rights. We initially

reject the City’s contention that Stone Street waived this argument by failing to raise it before the

ALJ during the hearing. To be sure, it is true that, as a general matter, arguments or issues not

raised in an administrative hearing “may not be raised for the first time before the circuit court

on administrative review.” Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228

Ill. 2d 200, 212 (2008). However, as a matter of fundamental fairness, “[a]pplication of the

waiver rule *** is less rigid” when the waived argument pertains to the conduct of the officer

presiding over the proceeding. See People v. Davis, 185 Ill. 2d 317, 343 (1998) (“Because the

basis for defendant’s claim is the circuit judge’s alleged refusal to consider certain mitigating




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No. 1-13-3159


evidence at defendant’s death penalty hearing, which concerns the fundamental fairness of that

proceeding, we review the claim for error.”).

¶ 21   But this is as far as Stone Street’s claim gets. In Scott v. Department of Commerce &

Community Affairs, 84 Ill. 2d 42, 54 (1981), the Illinois Supreme Court rejected a claim virtually

identical to Stone Street’s. The Scott court characterized the argument as follows: “Plaintiffs’

final argument is *** that they are entitled to a hearing before an impartial tribunal, and that due

process requirements preclude the Department from serving as both prosecutor and judge. We do

not agree.” The court explained that, “[w]ithout a showing to the contrary, State administrators

‘are assumed to be men of conscience and intellectual discipline, capable of judging a particular

controversy fairly on the basis of its own circumstances.’ ” Id. at 55 (quoting United States v.

Morgan, 313 U.S. 409, 421 (1941)). Relying extensively on Martin-Trigona v. Underwood, 529

F.2d 33 (7th Cir. 1975), the Scott court explained:

                “ ‘one who asserts this contention necessarily carries or assumes a

                difficult burden of persuasion. Initially, he must overcome a

                presumption of honesty and integrity in those serving as

                adjudicators; and second, he “must convince that, under a realistic

                appraisal of psychological tendencies and human weakness,

                conferring investigative and adjudicative powers on the same

                individuals poses such a risk of actual bias or prejudgment that the

                practice must be forbidden if the guarantee of due process is to be

                adequately implemented.” ’ ” Scott, 84 Ill. 2d at 55-56 (quoting

                Martin-Trigona, 529 F.2d at 37, quoting Withrow v. Larkin, 421

                U.S. 35, 47 (1975)).



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No. 1-13-3159


¶ 22    Stone Street argues that the ALJ violated its due process rights by “search[ing] for,

find[ing], present[ing] and accept[ing] into evidence documentary evidence (in the form of

photographs) into the record.” But even taking those allegations as true, they do not allege that

the ALJ was predisposed to rule against Stone Street. Moreover, Stone Street’s complaint does

not allege that “[t]he adjudicatory function” of the ALJ in this case was not “completely separate

from the investigatory function” of the officer who issued the citation. Van Harken v. City of

Chicago, 305 Ill. App. 3d 972, 985 (1999); see id. at 984 (“Illinois case law, however, rejects the

notion that the combination of investigatory, prosecutorial and judicial functions offends due

process.”). Based on the foregoing, we find that the circuit court correctly determined that count

I failed to state a claim for a due process violation.

¶ 23    We next consider whether the circuit court correctly dismissed count II, which sought

declaratory relief on the basis that the ALJ violated Stone Street’s right to due process of law

when she stated she would refrain from imposing the minimum fine on any party that did not

plead liable to its citation. Stone Street maintains that by so doing, the ALJ essentially imposed a

“trial tax” on it for exercising its right to a contested hearing. Relying on North Carolina v.

Pearce, 395 U.S. 711 (1969), Waicekauskas v. Burke, 336 Ill. App. 3d 436 (2002), and Northern

Illinois Home Builders Ass’n v. County of Du Page, 251 Ill. App. 3d 494 (1993) (Northern I),

Stone Street contends that this conduct constitutes a due process violation because “[t]he

imposition of a penalty for having pursued a right to appeal is a violation of due process of law.”

We disagree.

¶ 24    To begin, Stone Street’s “trial tax” claim is not cognizable as a due process claim. In

Northern I, the plaintiffs filed a complaint for mandamus seeking a declaration that an enabling

act, which allowed Du Page County to enact impact fees, and ordinances passed pursuant to the



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No. 1-13-3159


enabling act were unconstitutional. Northern I, 251 Ill. App. 3d at 497. Of particular relevance

here, one of the challenged ordinances stated, “ ‘in order to encourage the use of the above fee

schedule, if an applicant chooses to pay any applicable fee in accordance with such schedule, the

fee which would otherwise be due and owing shall be discounted by 15%. Developers who

choose to conduct an Individual Assessment *** shall forfeit the 15% discount.’ ” Id. at 510

(quoting Du Page County Ordinance No. ODT-021C-89 § 11(2) (eff. July 25, 1990)).

¶ 25   The plaintiffs contended that this ordinance violated their right to due process. Citing

Pearce, this court agreed. That decision was appealed to the Illinois Supreme Court, which

affirmed in part and reversed in part. The Illinois Supreme Court agreed with this court’s finding

that the ordinance was unconstitutional, but it explicitly disagreed that the ordinance violated due

process rights. Instead, relying on Lindsey v. Normet, 405 U.S. 56 (1972), the court found that

the ordinance’s 15% discount provision violated equal protection, as well as the uniformity

clause of the Illinois Constitution. See Northern Illinois Home Builders Ass’n, v. County of

Du Page, 165 Ill. 2d 25, 47 (1995) (Northern II) (“It is clear that the forfeiture of the 15%

discount burdens the right of a fee payer to appeal. However, we believe the constitutional

deprivation involved is more properly categorized as a violation of the equal protection and

uniformity clauses than of due process.”). In light of Northern II, we find that Stone Street’s

constitutional claim is not legally cognizable as a violation of due process rights.

¶ 26   Stone Street’s citation to Waicekauskas and Pearce does not compel us to reach a

different result. In Waicekauskas, this court—just as it did in Northern I—relied on Pearce for

the proposition that “[t]he imposition of a penalty for having pursued a right to appeal is a

violation of due process of law.” Waicekauskas, 336 Ill. App. 3d at 439. The court in

Waicekauskas, however, did not cite or acknowledge the Illinois Supreme Court’s decision in



                                                 11 

No. 1-13-3159


Northern II, 165 Ill. 2d at 47, which disagreed with the appellate court’s Pearce-based due

process holding. For this reason, we do not find Waicekauskas persuasive.

¶ 27   Moreover, Waicekauskas is distinguishable. In Waicekauskas, the plaintiff sued, among

others, the Village of Midlothian, alleging that the village’s motor vehicle parking ordinance was

unconstitutional. The specific ordinance at issue contained a schedule of mandated fines that

automatically escalated when a respondent timely requested a hearing. Waicekauskas, 336 Ill.

App. 3d at 437-38 (citing Midlothian Municipal Code § 10-17-9 (1993)).

¶ 28       Stone Street has not cited a Chicago ordinance resembling the ordinance examined in

Waicekauskas. Moreover, the ordinance at issue in Waicekauskas effectively deprived the

hearing officer of any discretion whatsoever as to whether to levy a higher fine on defendants

who opted for a hearing. By contrast, in the present case, Stone Street has not alleged the

existence of a City ordinance that required administrative law judges to impose higher fines on

those who exercised their right to a contested hearing. Similarly, Stone Street has not alleged that

the ALJ somehow lacked authority to impose a minimum fine on those who opted for a contested

hearing.

¶ 29   “Due process entails an orderly proceeding wherein a person is served with notice, and

has an opportunity to be heard and to present his or her objections, at a meaningful time and in a

meaningful manner, in a hearing appropriate to the nature of the case.” Village of Vernon Hills v.

Heelan, 2015 IL 118170, ¶ 31; see WISAM 1, Inc. v. Illinois Liquor Control Comm’n, 2014 IL

116173, ¶ 26 (“[I]n administrative matters, due process is satisfied when the party concerned has

the ‘opportunity to be heard in an orderly proceeding which is adapted to the nature and

circumstances of the dispute.’ ” (quoting Obasi v. Department of Professional Regulation, 266

Ill. App. 3d 693, 702 (1994)). Stone Street has not alleged that the ALJ’s conduct during the



                                                 12 

No. 1-13-3159


hearing was required by an ordinance mandating that all Department administrative law judges

impose more than the minimum fine on parties who opt for a contested hearing. That failing is

fatal to Stone Street’s claim. Because Stone Street has not alleged that the ALJ lacked discretion,

or was otherwise vindictive, it cannot seriously claim that it was denied its due process right to a

meaningful hearing.

¶ 30   In Pearce, the Supreme Court held that (1) “whenever a judge imposes a more severe

sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively

appear” and (2) the reasons for the increased sentenced “must be based upon objective

information concerning identifiable conduct on the part of the defendant occurring after the time

of the original sentencing proceeding.” Pearce, 395 U.S. at 726; see Alabama v. Smith, 490 U.S.

794, 798-99 (1989) (“In order to assure the absence of such a motivation [of vindictiveness], we

have concluded that whenever a judge imposes a more severe sentence upon a defendant after a

new trial, the reasons for him doing so must affirmatively appear. [Citation.] Otherwise, a

presumption arises that a greater sentence has been imposed for a vindictive purpose—a

presumption that must be rebutted by objective information *** justifying the increased

sentence.” (Internal quotation marks omitted.)). The Pearce presumption applies in

administrative proceedings. See Waicekauskas, 336 Ill. App. 3d at 439.

¶ 31   We nonetheless find Pearce inapplicable here because the ALJ’s conduct in this case

amounted to nothing more than constitutionally permissible plea bargaining. As the United

States Supreme Court has explained, “[t]o punish a person because he has done what the law

plainly allows him to do is a due process violation of the most basic sort, [citation], and for an

agent of the State to pursue a course of action whose objective is to penalize a person’s reliance

on his legal rights is ‘patently unconstitutional.’ [Citations.] But in the ‘give-and-take’ of plea



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No. 1-13-3159


bargaining, there is no such element of punishment or retaliation so long as the accused is free to

accept or reject the prosecution’s offer.” Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978).

¶ 32   “The plea bargaining process necessarily exerts pressure on defendants to plead guilty

and to abandon a series of fundamental rights, but [the Supreme Court has] repeatedly held that

the government ‘may encourage a guilty plea by offering substantial benefits in return for the

plea.’ ” United States v. Mezzanatto, 513 U.S. 196, 209-10 (1995) (quoting Corbitt v. New

Jersey, 439 U.S. 212, 219 (1978)); see United States v. Cruz, 977 F.2d 732, 733 (2d Cir. 1992)

(“Courts have long recognized that trial judges are entitled to encourage guilty pleas by imposing

on a defendant who pleads guilty a lesser sentence than would have been imposed had the

defendant stood trial.” (citing Corbitt, 439 U.S. at 219)). “While confronting a defendant with

the risk of more severe punishment clearly may have a ‘discouraging effect on the defendant’s

assertion of his trial rights, the imposition of these difficult choices [is] an inevitable’—and

permissible—‘attribute of any legitimate system which tolerates and encourages the negotiation

of pleas.’ ” Bordenkircher, 434 U.S. at 364 (quoting Chaffin v. Stynchcombe, 412 U.S. 17, 31

(1973)). It is therefore not a violation of due process to impose a harsher punishment after a

defendant declines to enter into a plea agreement. See id. at 365; People v. Walker, 84 Ill. 2d

512, 522 (1981) (“Bordenkircher teaches that defendants who make knowing, voluntary, and

intelligent choices to risk an increased sanction rather than plead guilty pursuant to a plea

bargain will be held to that choice.”); see also Smith, 490 U.S. at 802 (“[W]e have upheld the

prosecutorial practice of threatening a defendant with increased charges if he does not plead

guilty, and following through on that threat if the defendant insists on his right to stand trial.”).




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No. 1-13-3159


¶ 33   Thus, in People v. Lewis, 88 Ill. 2d 129 (1981), the Illinois Supreme Court rejected the

defendant’s claim that the State violated his right to due process by seeking the death penalty

after he rejected a plea bargain. The court explained:

                        “There is no merit to the contention that the prosecutor’s

                action in offering to recommend a 60-year sentence if defendant

                pleaded guilty, and seeking the death penalty when defendant

                elected to stand trial, penalized defendant for exercising his

                constitutional right to a jury trial. It is entirely clear that defendant

                knew death was a possibility when he chose to stand trial. There is

                here no indication of a purpose to punish defendant for exercising

                his right to jury trial, *** nor allegations of prosecutorial

                vindictiveness ***. Unless we are willing to say that a prosecutor

                may never seek a penalty greater than that offered in plea

                discussions, defendant’s argument here must fail, for his election

                to stand trial was made with a complete understanding of the

                hazards.” Id. at 148-49.

¶ 34   Stone Street’s complaint alleges that the ALJ stated that she had been authorized by the

City to impose only the minimum fine in exchange for a plea to liability. The ALJ cautioned,

however, that for parties that did not plead liable, the minimum fine was off the table and a more

harsh punishment would be levied. Stone Street has not alleged that it was not “free to accept or

reject the [ALJ’s] offer.” Bordenkircher, 434 U.S. at 363. Stone Street has also not alleged that

the ALJ’s statement was incomplete or ambiguous. As a result, Stone Street cannot contend that

its decision to have a contested hearing was not “made with a complete understanding of the



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No. 1-13-3159


hazards.” Lewis, 88 Ill. 2d at 148-49. Consequently, we find that the sum total of the allegations

in Stone Street’s complaint, and all reasonable inferences which can be drawn from those

allegations, is that the ALJ conveyed the City’s constitutionally permissible offer of plea

bargaining. The ALJ’s threat to impose higher fines on persons who requested hearings—a threat

she made good upon by increasing Stone Street’s fine by $100 over the minimum—was

heavy-handed. But case law from higher courts compels us to find that her practice was

constitutional, as against the specific challenges raised in Stone Street’s complaint. Accordingly,

the circuit court properly dismissed count II of Stone Street’s complaint for failure to state a

claim for a due process violation.

¶ 35   There are two final matters. First, in its appellate brief, Stone Street maintains that

various sections of the Chicago Municipal Code are facially unconstitutional. Specifically, Stone

Street maintains that (1) section 2-14-076(c) of the City’s code (Chicago Municipal Code § 2-14­

076(c) (amended Apr. 29, 1998)) is unconstitutional because, according to Stone Street, it

authorizes ALJs to “perform prosecutorial functions while acting as judge” and (2) the hearing

structure before the Department violates due process because the City’s code does not provide a

mechanism to allow litigants to request a substitution of judge. However, Stone Street’s

complaint did not allege that any specific section of the City’s code was facially unconstitutional

on these or any other bases. Accordingly, Stone Street forfeited these claims and they cannot

support reversal here. See International Insurance Co. v. Sargent & Lundy, 242 Ill. App. 3d 614,

627 (1993) (“[A]s this matter is before us on review of the trial court’s denial of a section 2-615

motion to dismiss, our consideration is limited to the facts alleged in the complaint.”).

¶ 36   The other matter is count IV, Stone Street’s claim for administrative review. It is unclear

whether Stone Street is actually appealing the circuit court’s order denying Stone Street’s



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petition for administrative review. Working in Stone Street’s favor is the fact that the notice of

appeal it filed lists the circuit court’s August 14, 2013, order as one of two orders from which it

is appealing. Moreover, in the section of its brief containing the standard of review governing

this appeal, Stone Street recites the standard of review applicable to administrative review

claims. Yet, in the issues presented section of its brief, Stone Street does not list the propriety of

the court’s resolution of count IV against Stone Street as one of the issues presented for our

review. Likewise, the argument section of Stone Street’s brief is completely silent with respect to

this issue. Stone Street’s failure to raise the correctness of the circuit court’s decision to deny its

petition for administrative review as an issue on appeal, and its corresponding failure to argue

that issue in its appellate brief, results in forfeiture.

¶ 37      Forfeiture aside, we note that the arguments Stone Street raised before the circuit court on

administrative review were largely duplicative of the legal issues it raised in counts I and II of its

complaint. Accordingly, on the merits, Stone Street’s petition for administrative review fails for

the same reason counts I and II fail. Moreover, Stone Street did not argue in the court below, nor

has it argued in this court, that the ALJ’s finding of liability was against the manifest weight of

the evidence. See Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76,

88 (1992) (“[O]n administrative review, it is not a court’s function to reweigh the evidence or

make an independent determination of the facts. Rather, the court’s function is to ascertain

whether the findings and decision of the agency are against the manifest weight of the

evidence.”). As a result, this issue is forfeited.

¶ 38      The circuit court therefore correctly denied Stone Street’s petition for administrative

review.




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¶ 39                                     CONCLUSION

¶ 40   We affirm the circuit court’s order dismissing counts I and II of Stone Street’s complaint

with prejudice. We also affirm the court’s order denying Stone Street’s petition for

administrative review.

¶ 41   Affirmed.




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