APPEAL from the Circuit Court of La Salle County; the Hon.
JOHN DAVID ZWANZIG, Judge, presiding.
JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
The plaintiffs filed suit against the defendants, alleging they denied the plaintiffs due process when they seized and destroyed the plaintiffs' automobile. The trial court granted the defendants' motion for summary judgment and the plaintiffs appeal.
There is no serious dispute over the facts. Robert Valdez, a plaintiff and the owner of a 1966 Pontiac LeMans, left the automobile on the shoulder of Frontage Road (south of Interstate 80 and just west of Illinois 23) in La Salle County in May of 1979 when it suffered mechanical problems. At the time, the car displayed valid license plates that were registered to the plaintiff at his current address. Sometime later, the Ottawa Police Department placed a sticker on the car. The sticker said the automobile would be towed unless it was moved.
The record is unclear on the length of time the vehicle remained on the shoulder, although the parties agree it was approximately one week. When this week had passed, the Ottawa Police Department authorized Kammerer's Auto Wrecking (the proprietors, Gerry and Robert Kammerer, are also defendants in this action) to tow the vehicle and store it on their property.
A friend of the plaintiffs spotted the car at Kammerer's Auto Wrecking and relayed this information to them. Sharon Valdez, Robert's wife and a party to this suit, called Kammerer's to find out if they would allow her husband to work on the car in their lot. Kammerer's denied permission to do so and told Sharon Valdez that a $70 towing fee had to be paid before she and her husband could move the vehicle. Mrs. Valdez asked if they could pay the towing fee after they claimed the car, but Kammerer's would not permit it. She explained to Kammerer's that she and her husband could not afford the towing fee, but that they did want the car. Kammerer's said they would hold the car until the plaintiffs could pay the fee.
In late May, the plaintiffs purchased a 1969 Oldsmobile. Mrs. Valdez went to Kammerer's lot and removed the plates from the Pontiac in order to transfer them to the newly purchased Oldsmobile. Mrs. Valdez told Gerry Kammerer that she still wanted the Pontiac.
Six weeks later, Kammerer's requested a disposition permit from the police department. Thomas Kossaris, an Ottawa police officer and a defendant in this action, unsuccessfully tried to telephone the plaintiffs concerning the disposition of the car. Subsequently, the police department issued the permit, and Kammerer's destroyed the automobile in July 1979. Other than Kossaris' phone call, the police made no attempt to contact the plaintiffs.
The plaintiffs began this action in November 1979. Their amended complaint asks for damages for the loss of the vehicle, and bases its prayer for relief on the fourteenth amendment to the United States Constitution, 42 U.S.C. § 1983 (1976), section 2 of article I of the Constitution of the State of Illinois, and Section 4-201 et seq. of the Illinois Vehicle Code (Ill. Ann. Stat., ch. 95 1/2, par. 4-201 et seq. (Smith-Hurd 1971 and Cum. Supp. 1981)).
The plaintiffs moved for summary judgment on the issue of liability, and the defendants moved for summary judgment on all issues. The trial court granted the defendants' motion, finding the plaintiffs left their vehicle unattended for so long that they had constructive notice that the police would tow the car. The court also found the plaintiffs abandoned the vehicle, thus preventing an action for damages for its loss. As to Kossaris, the court granted his motion for summary judgment, ruling that he was not the chief of police during the periods of time material here and that he was immune from suit under the doctrine of qualified immunity. The plaintiffs now appeal.
The principal issue in this appeal is whether the defendants violated the plaintiffs' constitutional rights when they seized their automobile without giving them prior notice of the seizure. The fourteenth amendment provides that:
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (U.S. Const., amend. XIV, sec. 2.)
Congress, under its fourteenth amendment powers, prohibited any deprivation of constitutional rights by any person acting under color of State law:
"Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress." 42 U.S.C. § 1983 (1976).
• 1, 2 Due process is not an inflexible standard and "does not require a trial-type hearing in every conceivable case of government impairment of private interest." (Cafeteria & Restaurant Workers Union v. McElroy (1961), 367 U.S. 886, 894, 6 L.Ed.2d 1230, 1236, 81 S.Ct. 1743, 1748.) Nonetheless, due process requires that "at a minimum * * * deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case." (Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 313, 94 L.Ed. 865, 873, 70 S.Ct. 652, 656-57.) The notice must be reasonably calculated to convey the necessary information and to afford the interested parties a reasonable time for a hearing. (339 U.S. 306, 314, 94 L.Ed. 865, 873, 70 S.Ct. 652, 657.) Those parties must be given notice and an opportunity before the deprivation takes place, unless there exists extraordinary circumstances requiring immediate action to protect a valid governmental interest. (Boddie v. Connecticut (1971), 401 U.S. 371, 378-79, 28 L.Ed.2d 113, 119, 91 S.Ct. 780, 786; Fuentes v. Shevin (1972), 407 U.S. 67, 81-82, 32 L.Ed.2d 556, 570-71, 92 S.Ct. 1983, 1994-95.) *fn1 Furthermore, there is no question that ownership of an automobile and continued access to it is a property interest within the protection of the fourteenth ...