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January 9, 1974


Before Cummings, Circuit Judge, and Decker and Tone, District Judges.

The opinion of the court was delivered by: Per Curiam.


This lawsuit challenges the validity of certain provisions of the Illinois Vehicle Code, Ill.Rev.Stat. ch. 95 1/2, §§ 4-200 through 4-214, and related sections of the Municipal Code of Chicago, §§ 27-360, -367, -372, -372.1, 27-423 through 27-429, which authorize law enforcement agencies to seize and dispose of "abandoned" motor vehicles. The defendants include the City of Chicago; James McQuire, Superintendent of the Illinois State Police at the time of the events complained of; Richard J. Elrod, Sheriff of Cook County; James B. Conlisk, Jr., Superintendent of the Chicago Police Department during the period in question; William J. Nicholl, Commanding Officer, Automotive Pounds Section, Chicago Police Department; Michael B. Costello, a Chicago policeman; and John Doe, a person of unknown identity who towed the plaintiff's automobile.*fn1

The first count of the amended complaint seeks declaratory and injunctive relief on the grounds that the statutory provisions violate the Fourth and Fourteenth Amendments to the U.S. Constitution, in that they provide for the seizure and detention by the state of private property — motor vehicles — without prior notice or an opportunity for a hearing, permit the sale or destruction by the state of such property without a prior hearing, authorize seizure and detention of motor vehicles without a search warrant or a judicial determination of probable cause, and, finally, deny equal protection to those indigent persons, like the plaintiff (who are unable to pay the towing and "storage" charges necessary to recover their vehicles, even though they may be found innocent of, or never charged with, the misdemeanor of "abandonment".*fn2 The second count asserts that the challenged provisions of the Municipal Code of Chicago violate the Fourth and Fourteenth Amendments in essentially the same respects as the statutory provisions. The final count seeks damages for the plaintiff's loss of use of his automobile during the period it was held by the city. Jurisdiction in this court is based upon 28 U.S.C. § 1331; 1343(3), (4); 2281; 2284; and 42 U.S.C. § 1983.

On January 23, 1973, a temporary restraining order was entered, forbidding destruction or sale of plaintiff's automobile pending its return to plaintiff and a further hearing on the merits. The order further restrained plaintiff from selling or otherwise disposing of the vehicle upon his regaining possession of it, pending the outcome of this lawsuit.

This three-judge court was convened pursuant to 28 U.S.C. § 2281. The matter is presently before the court upon the defendants' motion to dismiss the suit for lack of subject matter jurisdiction and for failure to state a cause of action, and upon plaintiff's cross-motion for partial summary judgment.*fn3 Since the defendants' motion to dismiss for failure to state a claim presents matters outside the pleadings, that motion will be treated as one for summary judgment, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.


The undisputed facts, as alleged in the amended complaint*fn4 or found upon an evidentiary hearing held before a single judge, are as follows: The plaintiff, Martin Graff, Jr., is the owner of a 1963 Triumph automobile, which is registered in his name with the State of Illinois and the City of Chicago, and which, at all relevant times, displayed the required license plates and vehicle stickers, and was parked in the public street across from the plaintiff's house. For approximately one month prior to November 10, 1972, the left front axle of plaintiff's vehicle had been raised off the ground, supported by a milk crate. Plaintiff testified that the car was left in this position because a part necessary for the operation of the left front wheel had been broken and a replacement ordered from England had not been received. In all other respects the body was intact and the car was operable.*fn5 On November 10, 1972, defendant Costello placed a "Police Notice" on the windshield of plaintiff's automobile, which stated that the car was an abandoned motor vehicle in violation of section 27-372 of the Municipal Code of Chicago, and, after quoting that provision, warned that unless the car was moved*fn6 it would be towed and impounded by the police. Officer Costello testified that the notice was placed on the car because, in his opinion, the vehicle was in a state of disrepair rendering it incapable of being driven.*fn7 On November 20th, when defendant Costello returned to inspect the vehicle, the notice was not on the automobile. Since it appeared that the car was in the same condition as it had been on November 10th, and that it had not been moved since that date, Officer Costello ordered its removal as an abandoned vehicle. On November 21st, defendant Woods towed plaintiff's car to a Chicago auto pound.

The aforementioned police sticker was the only notice directed to the plaintiff prior to the towing of his automobile.*fn8 Graff testified that he never saw this notice and there was no evidence to indicate how long it had remained on the automobile.

On November 22nd, after determining that Graff was the owner of the vehicle, Officer Nicholl, on behalf of the Automotive Pounds Section of the Chicago Police Department, sent plaintiff a registered letter informing him that his car was in police custody and could be regained by proof of ownership and payment of a $20 towing fee and $2 per diem storage charges. On December 4th, plaintiff proved his title to and registration for the automobile, but, in light of his inability to pay the towing and storage fees, and his refusal to accept defendant Nicholl's offer to reduce said charges,*fn9 the vehicle was not released. Pursuant to applicable statutes and ordinances*fn10 the practice of the Automotive Pounds Section is to destroy cars as old as the plaintiff's when the foregoing charges are not paid within 30 days from the mailing of the letter of notification.


The defendants have cited no authority and have presented no argument in support of their contention that the court lacks subject matter and personal jurisdiction. Such an assertion appears frivolous. No objection to the service of process in Illinois has been made. Subject matter jurisdiction is conferred by 28 U.S.C. § 1343(3) and (4). Moreover, claims under the U.S. Constitution and federal statutes may be dismissed only when the contention "appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous." Bell v. Hood, 327 U.S. 678, 682-683, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946). See Sigafus v. Brown, 416 F.2d 105, 107 (7th Cir. 1969). Dismissal of this action would be signally inappropriate in light of numerous recent cases suggesting that statutes and ordinances which authorize a taking and disposition of private property, or a deprivation of an important interest, without notice or an opportunity for a hearing, deserve strict scrutiny under the Due Process Clause of the Fourteenth Amendment. See, e.g., Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Scott v. Danaher, 343 F. Supp. 1272 (N.D.Ill. 1972) (three-judge court); Collins v. Viceroy Hotel Corp., 338 F. Supp. 390 (N.D.Ill. 1972).


Under the Illinois Motor Vehicle Code, it is unlawful to abandon*fn11 a motor vehicle on any highway,*fn12 or on private or public property, other than a highway, unless on property of the owner or bailee of the vehicle. Ill.Rev.Stat. ch. 95 1/2, § 4-200. A motor vehicle thus abandoned on private property "may be authorized for removal by a law enforcement agency having jurisdiction after a waiting period of 7 days or more has expired." Ill.Rev.Stat. ch. 95 1/2, § 4-200(b). When an abandoned vehicle is brought to the attention of the municipal police, Illinois State Police, or the county sheriff, that law enforcement agency may authorize towing and storage of the vehicle. Ill.Rev.Stat. ch. 95 1/2, § 4-201. If the identity of the owner or other person legally entitled to the vehicle is unknown to the agency which authorizes the impounding, a search must be made of the motor vehicle registration records of the Secretary of State; if the person legally entitled to possession is identified by this investigation, notice is to be sent to him by certified mail advising where the vehicle is held, requesting a disposition of the vehicle, and setting forth public sale information. Ill.Rev.Stat. ch. 95 1/2, § 4-204. The owner may reclaim the vehicle prior to its sale or destruction by proving his ownership or right to possession, and payment of all towing and storage charges. Ill.Rev.Stat. ch. 95 1/2, § 4-206. In cities with a population of more than 500,000, such as Chicago, a vehicle, which remains unclaimed for a period of 15 days after notice is sent to the owner of record, may be disposed of as provided in the "municipal purchasing act for cities of 500,000 or more population [Ill.Rev.Stat. 95 1/2, §§ 8-10-1 et seq.]." Ill.Rev.Stat. ch. 95 1/2, § 4-209. That act provides that goods worth less than $5,000 may be sold by a municipality to the highest bidder, or on the open market in a manner calculated to insure the best interest of the public, after solicitation of bids. Ill.Rev.Stat. ch. 24, § 8-10-3. It is apparent that the statute is more than "enabling legislation" and does, in fact, authorize local law enforcement officials to impound "abandoned" automobiles regardless of whether a local ordinance grants the same authority.


Those sections of the Municipal Code of Chicago which provide for impoundment of abandoned motor vehicles parallel the related statute, with the exception that the ordinance is limited to vehicles on a "public way".*fn13 The Code proscribes the abandonment of any motor vehicle on any public way within the City and provides a fine of not less than $25 nor more than $200 for such abandonment. MCC § 27-372, -372.1. Although the statute does not define abandonment, the Code raises a presumption of abandonment where a vehicle is "standing or parked on the public way, which vehicle is either (a) in such a state of disrepair as to be incapable of being driven in its present condition, or (b) has not been moved or used for more than seven consecutive days and is apparently deserted." MCC § 27-200. See MCC § 27-372. Members of the Chicago Police Department are authorized to remove such vehicles to the nearest city vehicle pound. MCC § 27-360(4). Before the owner of any legally impounded vehicle is permitted to remove the same from police custody, he must furnish evidence of his identity, ownership and right of possession thereto, sign a receipt for the vehicle, and pay a $20 towing fee and the accumulated storage charges. Within 15 days after impoundment, the Police Department must attempt to ascertain from the Secretary of State the name and address of the owner or the person legally entitled to possession of the vehicle, and send a ...

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