                                Illinois Official Reports

                                        Appellate Court



                     Hayenga v. City of Rockford, 2014 IL App (2d) 131261



Appellate Court           THERESA HAYENGA, Plaintiff-Appellee, v. THE CITY OF
Caption                   ROCKFORD, Defendant-Appellant.


District & No.            Second District
                          Docket No. 2-13-1261


Filed                     October 30, 2014


Held                       A decision by an administrative hearing officer for defendant city, a
(Note: This syllabus non-home-rule unit of government, upholding the impoundment of
constitutes no part of the plaintiff’s automobile after drug paraphernalia was discovered
opinion of the court but following a stop for a minor traffic violation was properly reversed by
has been prepared by the the trial court on administrative review, notwithstanding the city’s
Reporter of Decisions contentions that the impoundment was authorized under a municipal
for the convenience of ordinance and state law and that the trial court erred in denying the
the reader.)               city’s motion to reconsider, since section 17-41(a)(12) of the city’s
                           ordinances did not expressly authorize the city to impound a vehicle, it
                           merely provided for the imposition of fees and costs related to an
                           impounded vehicle, the city forfeited its argument that it had authority
                           to impound the vehicle under section 11-208.7 of the Vehicle Code by
                           failing to raise that argument in the administrative proceedings, and
                           the city also forfeited its arguments against the denial of its motion to
                           reconsider by failing to raise those arguments during the
                           administrative hearing.


Decision Under            Appeal from the Circuit Court of Winnebago County, No.
Review                    13-MR-397; the Hon. Eugene G. Doherty, Judge, presiding.



Judgment                  Affirmed.
     Counsel on               Kerry F. Partridge and Ifeanyi C. Mogbana, both of City of Rockford
     Appeal                   Department of Law, of Rockford, for appellant.

                              Charles J. Prorok, of Prorok Law Office, P.C., of Rockford, for
                              appellee.

                              Brian D. Day and Roger Huebner, both of Illinois Municipal League,
                              of Springfield, amicus curiae.



     Panel                    JUSTICE McLAREN delivered the judgment of the court, with
                              opinion.
                              Justices Jorgensen and Spence concurred in the judgment and opinion.


                                               OPINION

¶1         After defendant, the City of Rockford (City), a non-home-rule unit of government,
       impounded a vehicle owned by plaintiff, Theresa Hayenga, she brought an administrative
       action. The administrative hearing officer ruled in favor of the City. On administrative
       review, the trial court reversed the administrative hearing officer’s decision and ruled that the
       City did not have the authority to impound Hayenga’s vehicle. The City appeals the trial
       court’s decision, arguing that: (1) the City was authorized to impound Hayenga’s vehicle
       under a municipal ordinance; (2) the City had authority under state law to impound
       Hayenga’s vehicle; and (3) the trial court erred by denying the City’s motion to reconsider.
       We affirm the trial court’s decision.

¶2                                         I. BACKGROUND
¶3         On January 2, 2013, at approximately 11 p.m., Matthew Wiseman, Hayenga’s boyfriend,
       was driving Hayenga’s vehicle, alone, when he was pulled over by the Rockford police for a
       burned-out rear license-plate light. Rockford police officer Christopher Jones observed
       multiple firearms, in plain view, on the backseat of the car. Upon Jones’s request, Wiseman
       stepped out of the car. During a search of Wiseman, Jones found in Wiseman’s pocket a glass
       bowl or pipe with what appeared to be cannabis residue. Jones arrested Wiseman for
       unlawful possession of drug paraphernalia, a Class A misdemeanor. See 720 ILCS 600/3.5
       (West 2012). Jones also issued Wiseman a citation for the traffic violation and impounded
       Hayenga’s vehicle. Hayenga sought an administrative hearing, challenging the City’s
       authority to impound her vehicle.
¶4         During the administrative hearing on March 8, 2013, the City argued that it had authority
       to impound Hayenga’s vehicle pursuant to section 17-41(a)(12) of the Rockford Code of
       Ordinances (Rockford Code of Ordinances § 17-41(a)(12) (adopted Dec. 19, 2011)).
       Hayenga argued that section 17-41(a)(12) did not grant authority to impound vehicles,
       because it addressed only fees and procedures regarding impounded vehicles. Hayenga also

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       argued that the impoundment was improper because Wiseman was arrested for a
       misdemeanor, such that “he did not have to be brought before a magistrate” without
       unnecessary delay, and the City “had absolutely no authority to impound the vehicle” under
       state law. Further, the City had no statutory authority for its interpretation of its ordinance.
¶5         During the administrative hearing on April 12, the City argued that it relied on section
       11-208.7(b)(12) of the Illinois Vehicle Code (625 ILCS 5/11-208.7(b)(12) (West 2012)) in
       enacting section 17-41(a)(12). The administrative hearing officer stated that there were no
       questions of fact and that section 17-41(a)(12)’s validity was a question of law. The hearing
       officer stated, “I do find this City’s ordinance allows and is proper in accordance with State
       law and with [the Rockford police department’s probable-cause statement] and I will uphold
       the impounding of the vehicle.”
¶6         The probable-cause statement indicated the following. Jones stopped Wiseman “for no
       rear registration light in the 1100 block of N. Church St.” Because Jones observed multiple
       firearms on the backseat (the guns were later determined to be “BB/CO2 guns”), Jones had
       Wiseman step out of the vehicle and patted him down. Jones removed from Wiseman’s
       pocket a glass bowl or pipe used to ingest cannabis and took him “into custody at 1100 N.
       Church St. without incident.”
¶7         On April 23, 2013, Hayenga timely filed a complaint for administrative review in the trial
       court, alleging that “[t]he decision of the Hearing Officer was contrary to the law, against the
       manifest weight of the evidence and clearly erroneous”; section 17-41(a)(12) did not
       authorize the impoundment of her vehicle; and the City did not otherwise have authority to
       impound her vehicle, because Wiseman “could have legally parked the vehicle where it was
       stopped.” Hayenga asked the trial court to reverse the decision of the administrative hearing
       officer and order her vehicle returned to her without the payment of fees or costs.
¶8         The City responded, arguing that it had authority to impound Hayenga’s vehicle pursuant
       to section 17-41(a)(12), which mirrored section 11-208.7(b)(12) of the Vehicle Code.
¶9         On September 6, the trial court ruled that the City did not have authority to impound
       Hayenga’s vehicle. The trial court’s order states, “Section 17-41 of [the Code of Ordinances]
       does not enable [the City] to impound the Plaintiff’s vehicle.”
¶ 10       On October 1, the City filed a motion to reconsider, arguing that it had authority to
       impound Hayenga’s vehicle because Wiseman was arrested for a Class A misdemeanor (720
       ILCS 600/3.5 (West 2012)); the vehicle was on a “highway” within the meaning of section
       11-1302(c)(3) of the Vehicle Code (625 ILCS 5/11-1302(c)(3) (West 2012)) (authorizing
       towing a vehicle after an arrest); and section 109-1(a) of the Code of Criminal Procedure of
       1963 (725 ILCS 5/109-1(a) (West 2012)) mandated the police to arrest Wiseman and
       transport him to the Winnebago County jail “without unnecessary delay.”
¶ 11       The trial court denied the City’s motion on October 31, reasoning that “citation of
       existing authority to support a new theory of the City’s position is not a proper basis for
       reconsideration.” On November 20, the City filed a notice of appeal.

¶ 12                                         II. ANALYSIS
¶ 13        The City urges this court to reverse the trial court’s decision that it had no authority to
       impound Hayenga’s vehicle. The City argues that it had authority under section 17-41(a)(12)
       of its Code of Ordinances.

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¶ 14       On appeal, this court reviews the determination of the agency and not that of the trial
       court. Marconi v. Chicago Heights Police Pension Board, 225 Ill. 2d 497, 531 (2006). The
       factual findings of the agency are deemed prima facie true and correct. Livingston v.
       Department of Employment Security, 375 Ill. App. 3d 710, 714 (2007). This court will not
       overturn such findings unless they are against the manifest weight of the evidence. Lyon v.
       Department of Children & Family Services, 209 Ill. 2d 264, 271 (2004). “An administrative
       agency decision is against the manifest weight of the evidence only if the opposite conclusion
       is clearly evident.” Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d
       76, 88 (1992). However, we review de novo questions of law. See Lyon, 209 Ill. 2d at 271.
¶ 15        We first note that the parties agree that the City is a non-home-rule unit. As a
       non-home-rule unit, the City is governed by “Dillon’s Rule.” See Janis v. Graham, 408 Ill.
       App. 3d 898, 902 (2011). Under “Dillon’s Rule,” a non-home-rule unit possesses only those
       powers specifically granted by the Illinois Constitution or by statute. Id. However, when
       exercising authority to regulate in a particular field, a non-home-rule unit may not adopt an
       ordinance that infringes upon the spirit of the state law or is repugnant to the general policy
       of this state. Id.
¶ 16        The City argues that “the Administrative Hearing Officer properly construed section
       17-41(a)(12) as authority to impound Hayenga’s vehicle.” Hayenga argues that section
       17-41(a)(12) merely authorized the City to impose administrative fees and did not authorize
       the City to impound Hayenga’s vehicle.
¶ 17       The rules of statutory construction apply to the interpretation of municipal ordinances.
       Palm v. 2800 Lake Shore Drive Condominium Ass’n, 2013 IL 110505, ¶ 48. The primary
       objective of statutory construction is to ascertain and give effect to the intent of the
       legislature. Id. The best indication of the legislative intent is the statutory language, given its
       plain and ordinary meaning. Id. We review de novo a question of statutory construction. Id.
¶ 18       Section 17-41(a)(12) provides:
                    “Sec. 17-41.-Administrative fees and procedures for impounding vehicles for
                specified violations.
                        (a) The city, in addition to any fees charged for the towing and storage of an
                    impounded vehicle, shall impose on the registered owner of the motor vehicle or
                    the agents of that owner, a reasonable administrative fee related to its
                    administrative and processing costs associated with the investigation, arrest, and
                    detention of an offender, or the removal, impoundment, storage and release of a
                    vehicle for the following violations:
                                                    ***
                            (12) Operation or use of a motor vehicle in the commission of, or in the
                        attempt to commit, any other misdemeanor or felony offense in violation of
                        the Criminal Code of 1961 when so provided by local ordinance.” (Emphases
                        added.) Rockford Code of Ordinances § 17-41(a)(12) (adopted Dec. 19,
                        2011).
¶ 19        In this case, the administrative hearing officer determined that the City’s ordinance
       permitted the impoundment of Hayenga’s vehicle and was in accordance with section
       11-208.7(b)(12) of the Vehicle Code. It is this decision that we must review. See Marconi,
       225 Ill. 2d at 531.


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¶ 20       The City contends that the administrative hearing officer reasonably determined that the
       City was authorized to impound Hayenga’s vehicle pursuant to its ordinance and section
       11-208.7(b)(12) of the Vehicle Code.
¶ 21       The City acknowledges in its brief, “Section 17-41 of the [Code of Ordinances] does not
       expressly authorize the arrest of a driver or the ability to impound a vehicle.” (Emphasis
       added.) After reviewing the language of the ordinance, there can be no other conclusion.
       Nothing in the ordinance authorizes the City to impound a vehicle. The ordinance addresses
       the imposition of fees and costs related to an impounded vehicle; it does not grant authority
       to impound. Whether the ordinance is in accordance with section 11-208.7(b)(12) of the
       Vehicle Code does not matter for our purposes here. The ordinance relied upon by the City
       for impoundment is insufficient. Accordingly, the administrative hearing officer erred by
       determining that the ordinance authorized the impoundment of Hayenga’s vehicle.
¶ 22       The City argues that as a non-home-rule unit it had explicit authority to impound
       Hayenga’s vehicle pursuant to section 11-208.7 of the Vehicle Code. The City also contends
       that section 11-208.7 should be construed as part of a comprehensive legislative framework
       that ensures the safety of the members of the public who use the public roadways. However,
       the City failed to raise these arguments during the administrative process. The record
       indicates that, regarding section 11-208.7 of the Vehicle Code, the City argued only that it
       relied on that section in enacting section 17-41(a)(12). Accordingly, the City’s “explicit
       authority” argument is forfeited. Texaco-Cities Service Pipeline Co. v. McGaw, 182 Ill. 2d
       262, 278 (1998) (“issues or defenses not placed before the administrative agency will not be
       considered for the first time on administrative review”); see 735 ILCS 5/3-110 (West 2012).
¶ 23       Even if the City had raised the argument that section 11-208.7 of the Vehicle Code
       granted it explicit authority to impound Hayenga’s vehicle, its argument would fail. We
       agree with Hayenga’s argument that nothing in section 11-208.7 grants authority to impound
       vehicles. Section 11-208.7 provides:
                   “§ 11-208.7. Administrative fees and procedures for impounding vehicles for
               specified violations.
                   (a) Any municipality may, consistent with this Section, provide by ordinance
               procedures for the release of properly impounded vehicles and for the imposition of a
               reasonable administrative fee related to its administrative and processing costs
               associated with the investigation, arrest, and detention of an offender, or the removal,
               impoundment, storage, and release of the vehicle. The administrative fee imposed by
               the municipality may be in addition to any fees charged for the towing and storage of
               an impounded vehicle. The administrative fee shall be waived by the municipality
               upon verifiable proof that the vehicle was stolen at the time the vehicle was
               impounded.
                   (b) Any ordinance establishing procedures for the release of properly impounded
               vehicles under this Section may impose fees for the following violations:
                                                   ***
                       (12) operation or use of a motor vehicle in the commission of, or in the
                   attempt to commit, any other misdemeanor or felony offense in violation of the
                   Criminal Code of 1961 or the Criminal Code of 2012, when so provided by local
                   ordinance.” (Emphases added.) 625 ILCS 5/11-208.7 (West 2012).


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¶ 24       Hayenga argues that section 11-208.7 of the Vehicle Code does not grant authority to
       impound vehicles. Hayenga argues that section 11-208.7 “clearly and unambiguously
       provides for a procedure for non-home-rule entities to ‘provide by ordinance for procedures
       for release of properly impounded vehicles and for the imposition of a reasonable
       administrative fee.’ ” (Emphasis added.) See 625 ILCS 5/11-208.7(a) (West 2012).
¶ 25       We agree with Hayenga’s interpretation. Nothing in section 11-208.7 of the Vehicle Code
       grants authority to impound vehicles. The plain and ordinary language of subsection (a)
       grants non-home-rule units the power to enact ordinances to establish procedures for the
       release of “properly impounded vehicles” and for the imposition of reasonable fees.
       Subsection (b), likewise, limits a non-home-rule unit’s power to impose fees pursuant to its
       procedures for the release of vehicles that were “properly impounded.” Thus, section
       11-208.7 does not grant non-home-rule units the power to impound vehicles. Accordingly,
       even if the City had not forfeited its argument that section 11-208.7 granted it explicit
       authority to impound Hayenga’s vehicle, that argument would fail.
¶ 26       The City argues that this interpretation is illogical because it grants municipalities the
       authority to impose fees for impounding vehicles while denying municipalities the authority
       to impound those same vehicles. We disagree with the City’s argument. The plain and
       ordinary language of section 11-208.7 does not deny non-home-rule units the power to
       impound vehicles; rather, it requires that those vehicles are “properly impounded.” However,
       the record indicates that the City failed to argue that Hayenga’s vehicle was “properly
       impounded.” Further, nothing in the record indicates that the administrative hearing officer
       made any findings regarding this issue. Rather, the City relied only upon, and the
       administrative hearing officer ruled only upon, whether the City had authority to impound
       pursuant to its ordinance in accordance with section 11-208.7. Thus, we need not discuss
       whether Hayenga’s vehicle was “properly impounded.” See Texaco-Cities Service Pipeline
       Co., 182 Ill. 2d at 278; see also Wade v. City of North Chicago Police Pension Board, 226 Ill.
       2d 485, 504 (2007) (on appeal from administrative review in the trial court, it is the hearing
       officer’s decision that is reviewed, and not that of the trial court).
¶ 27       The City also argues that it had authority to impound Hayenga’s vehicle pursuant to
       section 109-1(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/109-1(a) (West
       2012)) and section 11-1302(c)(3) of the Vehicle Code (625 ILCS 5/11-1302(c)(3) (West
       2012)). Section 109-1(a) of the Code of Criminal Procedure of 1963 provides, “A person
       arrested with or without a warrant shall be taken without unnecessary delay before the
       nearest and most accessible judge in that county ***.” 725 ILCS 5/109-1(a) (West 2012).
       Section 11-1302(c)(3) of the Vehicle Code provides:
                   “(c) Any police officer is hereby authorized to remove or cause to be removed to
               the nearest garage or other place of safety any vehicle found upon a highway when:
                                                   ***
                       3. *** the person driving or in control of such vehicle is arrested for an
                   alleged offense for which the officer is required by law to take the person arrested
                   before a proper magistrate without unnecessary delay ***[.]” 625 ILCS
                   5/11-1302(c)(3) (West 2012).
       The City argues that, pursuant to section 109-1(a), when Jones arrested Wiseman, he was
       “required” for purposes of section 11-1302(c)(3) to take him before a magistrate without
       unnecessary delay. Therefore, the City contends, section 11-1302(c)(3) authorized the City to

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       impound Hayenga’s vehicle. Hayenga argues that Jones was not “required” to arrest
       Wiseman; instead, Jones could have issued Wiseman a notice to appear pursuant to section
       107-12 of the Code of Criminal Procedure of 1963 (725 ILCS 5/107-12 (West 2012)), and
       there would have been no need to take him into custody.
¶ 28        It is well settled that the forfeiture principle applies to administrative review cases, and
       “issues or defenses not placed before the administrative agency will not be considered for the
       first time on administrative review.” Texaco-Cities Service Pipeline Co., 182 Ill. 2d at 278;
       see 735 ILCS 5/3-110 (West 2012). Because this case comes to us on administrative review,
       it is the hearing officer’s decision that we review, not that of the trial court. See Wade, 226
       Ill. 2d at 504. Consequently, the only question relevant to forfeiture is whether the City raised
       these arguments during the administrative hearing. The record indicates that the City failed to
       raise these arguments, and therefore these arguments are forfeited.
¶ 29        The City also argues that the trial court erred by denying its motion to reconsider. In its
       motion to reconsider, the City argued that it had authority to impound Hayenga’s vehicle
       because: Wiseman was arrested for a Class A misdemeanor (720 ILCS 600/3.5 (West 2012));
       the vehicle was on a “highway” within the meaning of section 1302(c)(3) of the Vehicle
       Code (625 ILCS 5/1302(c)(3) (West 2012)) (authorizing towing a vehicle after an arrest);
       and section 109-1(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/109-1(a) (West
       2012)) mandated the police to arrest Wiseman and transport him to the Winnebago County
       jail “without unnecessary delay.” The City urges this court to consider these arguments on
       appeal. However, because the City failed to raise these arguments during the administrative
       hearing, these arguments are forfeited.

¶ 30                                      III. CONCLUSION
¶ 31      For the reasons stated, we affirm the judgment of the trial court.

¶ 32      Affirmed.




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