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Lamar Whiteco Outdoor Corp. v. City of West Chicago2/8/2005
at 439, citing Lavey, 994 F. Supp. at 1023.
Counts II and III of the Clear Channel plaintiffs' complaint cite the first amendment to the United States Constitution and section 4 of article I of the Illinois Constitution, respectively. The claims request the court to " djudicate and declare that the portions of the City of West Chicago 's Ordinance are void and unenforceable due to its violations of the United States Constitution * Illinois Constitution." Construing the allegations in the light most favorable to the Clear Channel plaintiffs, as we must at this stage, we conclude that counts II and III of their complaint articulate a facial challenge to the ordinance on free speech grounds pursuant to the United States and Illinois Constitutions. Therefore, the free speech claims under these counts are not subject to a statute of limitations defense, and the trial court erroneously dismissed them as untimely.
In appeal No. 2--04--0575, the City fails to address the contents of counts II and III of the Clear Channel plaintiffs' complaint. Instead, the City argues for the first time that the counts fail to state a claim for relief on free speech grounds because they do not allege that the ordinance distinguishes commercial and noncommercial speech. The City contends that counts II and III do not state facial free speech challenges because the Clear Channel plaintiffs "have not alleged that the City interprets its ordinance as precluding noncommercial or any other kind of message."
However, in the trial court, the City moved to dismiss the complaint only on timeliness grounds under section 2--619(a)(5) of the Code, and the parties to appeal No. 2--04--0575 never addressed the sufficiency of the free speech claims in counts II and III. The City fails to acknowledge on appeal that its motion to dismiss admitted the legal sufficiency of the complaint, including the free speech allegations. See Rajcan, 347 Ill. App. 3d at 407.
The question remains whether, on remand, the City may revive the section 2--615 argument it presented here for the first time. In River Park, Inc. v. City of Highland Park, 295 Ill. App. 3d 90 (1998), the plaintiffs successfully appealed a dismissal of their complaint under section 2--615; and upon remand of the plaintiffs' first appeal, the defendant succeeded on a new motion to dismiss under section 2--619. River Park, 295 Ill. App. 3d at 91-92. In the second appeal, the plaintiffs argued that the defendant waived consideration of its section 2--619 motion to dismiss by failing to file it with the earlier section 2--615 motion. We held as follows:
"While considerations of judicial and client economy might favor this argument, neither the Code nor case law requires a party to file all dispositive motions together. Section 2--619.1 of the Code states ' otions with respect to pleadings under Section 2--615, motions for involuntary dismissal or other relief under Section 2--619, and motions for summary judgment under Section 2--1005 may be filed together as a single motion in any combination.' 735 ILCS 5/2--619.1 (West 1996). Thus, section 2--619.1 of the Code permits, but does not require, a party to file all of its motions to dismiss at once." River Park, 295 Ill. App. 3d at 93. In agreement with this rationale, we conclude that, upon remand, the City may file a new motion to dismiss the Clear Channel plaintiffs' free speech claims if it so chooses. See River Park, 295 Ill. App. 3d at 93.
Parenthetically, we note that the City challenged the sufficiency of the Whiteco plaintiffs' complaint under section 2--615 in the trial court, but it appears that the trial court did not rule on that part of the motion to dismiss. In appeal
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