February 16, 2016
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 15-cv-00019 -
Sharon Johnson Coleman, Judge.
Posner, Williams, and Hamilton, Circuit Judges.
Hamilton, Circuit Judge.
November 7, 2014, plaintiff Tamara Simic was driving in
Chicago and texting on her cell phone. A police officer
issued her a ticket because texting while driving violates a
Chicago ordinance. Simic failed to pay the ticket, and the
City took steps to collect a fine. Simic then sued the City,
claiming that the ordinance is unconstitutional. She moved
for a preliminary injunction to halt enforcement of the
ordinance throughout Chicago, but the City then non-suited
its case against her. The district court denied Simic's
motion for an injunction, and Simic has appealed.
affirm the district court's denial of Simic's motion
for a preliminary injunction for two reasons. Simic did not
face any threat of irreparable harm. Also, without assessing
her likelihood of success on the merits of her constitutional
arguments, it appears that Simic lacks Article III standing
for the relief she seeks. Once our mandate issues, the
district court should consider dismissing Simic's lawsuit
for lack of jurisdiction.
Factual and Procedural Background
Chicago ordinance prohibits drivers from using handheld
mobile telephones while operating their vehicles. Chic. Mun.
Code § 9-76-230. On November 7, 2014 a Chicago police
officer ticketed Simic for violating the ordinance. The
ticket directed Simic to appear for a hearing or to pay a
$100 fine by mail. Simic did neither. The Chicago Department
of Administrative Hearings entered a default judgment against
her for $540. As the ticket had warned, $500 was the maximum
fine for Simic's infraction and $40 was for
did not dispute that she was texting while driving; instead
she challenged the constitutionality of the Chicago
ordinance. She sued the City on January 3, 2015, seeking
declaratory and injunctive relief and monetary damages in
excess of one million dollars. She alleged that Chicago's
cell phone ordinance violates the Fourteenth Amendment's
Due Process Clause and the Eighth Amendment's Excessive
Fines Clause. She also alleged several state-law claims and
sought certification of a plaintiff class.
main theory is that the ordinance somehow violates the United
States Constitution because it exceeds the powers the State
of Illinois has granted to the City of Chicago. Illinois
prevents municipalities from creating ordinances regarding
certain traffic offenses, such as those offenses in the
Illinois Vehicle Code. See 65 ILCS 5/1-2.1-2. The Illinois
Vehicle Code contains a prohibition on cell phone use while
driving. 625 ILCS 5/12-610.2 (prohibiting a person from
operating "a motor vehicle on a roadway while using an
electronic communication device"). Simic argues that
Chicago's cell phone ordinance is preempted by the
Illinois statute. See Catom Trucking, Inc. v.
Chicago, 952 N.E.2d 170, 175-76 (111. App. 2011)
(holding city could not enforce through administrative
adjudication a city ordinance limiting vehicle weight). The
Illinois statute on cell phone use while driving caps the
amount a driver may be fined: "A person who violates
this Section shall be fined a maximum of $75 for a first
offense, $100 for a second offense, $125 for a third offense,
and $150 for a fourth or subsequent offense."
such an issue of state law presents a federal constitutional
issue remains something of a mystery. Simic's theory
seems to be that Chicago's fines are both "excessive
and disproportionate to the gravity of the offense" and
imposed without authority under state law, from which she
concludes that the city's fines violate the Excessive
Fines Clause of the Eighth Amendment and the Due Process
Clause of the Fourteenth Amendment. As explained below,
however, Simic's case runs into trouble at the
preliminary level of standing.
January 23, 2015, after Simic filed her motion for a
preliminary injunction, the Department granted Simic's
motion to set aside the default judgment in her state case
and continued her case until March 11, 2015. On May 18, after
several agreed continuances, the city non-suited the
administrative proceeding. Simic never paid any money for
violating the Chicago ordinance, and she is no longer liable
for the fine.
24, 2015, the district court denied Simic's motion for a
preliminary injunction because she failed to show a threat of
irreparable injury and because her prospects for success on
the merits were "doubtful." There was no threat of
irreparable harm because "the very nature of Simic's
claim that the $500 fine is excessive necessarily means that
her complaints can be remedied by monetary damages, and thus,
there exists an adequate remedy at law." Simic was
unlikely to prevail on the merits, the court said, because