to apprise the owner of the availability of a hearing.
The hearing must be available promptly so that an
erroneously held vehicle can be released before the owner
incurs substantial harm. Stypmann v. City and County of San
Francisco, 557 F.2d 1338, 1344 (9th Cir. 1977). The instant
procedure provides for immediate release of a vehicle only if
the owner pays all the traffic fines or a bond. If the owner is
unwilling or unable to make payment, the City will hold his
vehicle. In either case, a hearing to determine the validity of
the booting is available within two working days of a request
for such.*fn13 Therefore, we find that the current procedure
provides an opportunity to be heard within a reasonable time
The hearing must also be fair and impartial. The owner must
be afforded an opportunity to present a defense. See American
Surety Co. v. Baldwin, 287 U.S. 156, 168, 53 S.Ct. 98, 102, 77
L.Ed. 231 (1932). Plaintiffs claim that due process is violated
if the hearing does not provide a forum for deciding the
validity of each and every ticket. However, the validity of the
booting is based solely on the existence of ten or more
outstanding traffic citations, regardless of the merits of each
citation. The owner already had an opportunity to contest each
ticket, and he may obtain a future court date for each one if
he desires. The only defense available to the owner at the
post-immobilization hearing is that he in fact does not have
ten outstanding violations. He must be given a chance to
present this defense only.
Due process requires that the hearing officer be impartial.
Arnett v. Kennedy, 416 U.S. 134, 197, 94 S.Ct. 1633, 1665, 40
L.Ed.2d 15 (1974). Plaintiffs allege that the Assistant
Corporation Counsel and the Clerk of the Cook County Circuit
Court cannot properly serve as hearing officers because they
are necessarily biased in favor of the City. It has been held
that a chief of police cannot fairly determine the validity of
a tow, Hale v. Tyree, 491 F. Supp. 622, 626 (E.D.Tenn. 1979),
and that a mayor of a town cannot serve as a judge in the town
traffic court. Ward v. Village of Monroeville, 409 U.S. 57, 93
S.Ct. 80, 34 L.Ed.2d 267 (1972). In both Hale and Ward it was
determined that the person serving as hearing officer had a
substantial interest in the matter before him which impaired
The impartiality of the Assistant Corporation Counsel is
similarly impaired. The Corporation Counsel represents the
City's interests in all actions involving the City or its
employees. Municipal Code of Chicago, ch. 6-2 (1983). Thus, it
is the Assistant Corporation Counsel who prosecutes alleged
violators of parking laws and who defends any City employee
accused of improperly booting a vehicle. Given these duties,
the Assistant Corporation Counsel
is not sufficiently detached to serve as the hearing officer
in the post-immobilization hearing.*fn15
The Clerk of the Court stands in a different position. The
Clerk's duties allow him to remain neutral towards the City,
and plaintiffs suggest no other reason why the Clerk could not
be impartial in a post-immobilization hearing. Thus, an
owner's due process rights will not be violated if the Clerk
of the Court conducts the hearing.
We conclude, therefore, that due process does not require a
pre-deprivation hearing. Moreover, the only constitutional
infirmity in the current post-deprivation hearing procedure is
the use of the Assistant Corporation Counsel as hearing
officer. Accordingly, defendants' motion to dismiss the due
process claim is granted in all respects except as it relates
to the Assistant Corporation Counsel's role in the hearing.
Similarly, plaintiffs' motion for partial summary judgment is
granted concerning this issue only and is otherwise denied.
Paragraph 27-435 does not expressly state that the Assistant
Corporation Counsel — or any other particular person — shall
serve as the officer at the post-deprivation hearing. The
ordinance therefore is not unconstitutional on its face, but
only as it has been applied. Plaintiffs are entitled to limited
injunctive relief: the City shall be enjoined from using the
Assistant Corporation Counsel as hearing officer and shall be
required promptly to afford plaintiff Barron a new hearing
which complies with the due process requirements discussed
above.*fn16 Plaintiffs' requests for broader injunctive relief
IV. Equal Protection
When governmental legislation relates to matters of social
or economic welfare, the law need only bear a rational
relationship to a legitimate governmental purpose to withstand
equal protection challenges. However, the judiciary gives
strict scrutiny to legislative classifications that may
interfere with the exercise of a fundamental right or
adversely affect a suspect group. Massachusetts Board of
Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d
Plaintiffs allege that the booting ordinance violates the
equal protection clause because it adversely affects
indigents, less able to pay the boot fee than others. However,
the Supreme Court has held that indigents are not a suspect
class. Schweiker v. Wilson, 450 U.S. 221, 101 S.Ct. 1074, 67
L.Ed.2d 186 (1981); United States v. Kras, 409 U.S. 434, 93
S.Ct. 631, 34 L.Ed.2d 626 (1973). Because no suspect class is
involved, the strict scrutiny test should be applied only if a
fundamental right is affected by the ordinance.
A fundamental right has a constitutionally cognizable basis
that must be protected by close judicial scrutiny. Plaintiffs
contend that driving a car is a fundamental right. Access to
the complete criminal process*fn17 and the rights to
vote*fn18 and to run for office*fn19 all have been held to
be fundamental rights. However, the rights to welfare
benefits,*fn20 public housing*fn21 and
equal educational opportunities*fn22 are not fundamental.
Like this latter group of rights, the right to drive a car may
be important, but it is not constitutionally recognized and is
Since there is no suspect class or fundamental right
involved, the rational relationship test applies in this case.
Under this test, a law is upheld unless it is arbitrary and
bears no rational relationship to a legitimate government
interest. Frontiero v. Richardson, 411 U.S. 677, 683, 93 S.Ct.
1764, 1768, 36 L.Ed.2d 583 (1973). The legitimate government
interest here is keeping the streets free from congestion and
safe for the general public. Sutton v. City of Milwaukee, 672
F.2d at 646; Gillam v. Landrieu, 455 F. Supp. 1030, 1042
(E.D.La. 1978). The City enacts traffic ordinances which serve
this purpose. As discussed earlier, the boot is a highly
efficient means of enforcing these ordinances. The ordinance
providing for the immobilization of vehicles is therefore
directly and rationally related to a legitimate government
interest. Because the rational relationship test is satisfied,
the motion to dismiss the equal protection claim is granted.
V. Fourth Amendment
Plaintiffs allege that the immobilization of a vehicle is an
improper seizure prohibited by the Fourth Amendment. The goals
of the Fourth Amendment include the protection of privacy
against arbitrary invasion and the prevention of introduction
of evidence seized without probable cause in court, usually in
a criminal prosecution. United States v. Ortiz, 422 U.S. 891,
95 S.Ct. 2585, 45 L.Ed.2d 623 (1975); Chimel v. California,
395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Berger v. State
of New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040
(1967). The use of the boot does not interfere with these
goals. The vehicle is simply immobilized, neither entered nor
searched. Although the owner may be inconvenienced by the
booting, his privacy has not been invaded. The vehicle is not
seized as evidence. Nor will the act of booting a vehicle
produce evidence concerning past violations.*fn23 Finally, the
Fourth Amendment protects only against unreasonable searches
and seizures. United States v. Rabinowitz, 339 U.S. 56, 65-66,
70 S.Ct. 430, 435, 94 L.Ed. 653 (1950). Even if booting were
viewed as a seizure, it is not an unreasonable one. Cf. South
Dakota v. Opperman, 428 U.S. 364, 368-69, 96 S.Ct. 3092, 3097,
49 L.Ed.2d 1000 (1976) (police inventory of car interior not an
For these reasons, the motion to dismiss the Fourth
Amendment claim is granted.
VI. Bill of Attainder and Ex Post Facto
Plaintiffs claim that the ordinance violates Article 1,
§ 10 of the United States Constitution because it is both an ex
post facto law and a bill of attainder. An ex post facto law
makes criminal an action that was innocent when done and then
punishes that action or attaches a greater punishment to a
crime than was attached when the crime was committed. Gibson v.
Mississippi, 162 U.S. 565, 16 S.Ct. 904, 40 L.Ed. 1075 (1896).
A bill of attainder imposes punishment upon an easily
identifiable group or an individual without judicial trial.
Cummings v. Missouri, 71 U.S. 277, 287, 4 Wall. 277, 18 L.Ed.
The Article 1, § 10 prohibition relates to punishment only.
United States Trust Co. of New York v. New Jersey, 431 U.S. 1,
17 n. 13, 97 S.Ct. 1505, 1515 n. 13, 52 L.Ed.2d 92 (1977). The
of the booting ordinance are non-punitive. The City is not
attempting to punish owners for having ten outstanding tickets
but is merely trying to get them to respond to those tickets.
No additional fine is incurred as a result of having ten
tickets; the owner pays the same amount for the past tickets
as he would have paid if his vehicle had not been booted. The
$35 boot fee is compensatory in nature. It covers the costs of
implementing the booting system and is not a punishment for
incurring ten tickets. See Federal Election Commission v.
Lance, 617 F.2d 365, 370 (5th Cir. 1980), cert. denied,
453 U.S. 917, 101 S.Ct. 3151, 69 L.Ed.2d 999 (1981); United Nuclear
Corp. v. Cannon, 553 F. Supp. 1220, 1227 (D.R.I. 1982).
Nonetheless, a retroactive law that does not impose
punishment may be unconstitutional under the due process
clause — but only if the results are so wholly unexpected and
disruptive that "harsh and oppressive" consequences follow.
United States Trust Co. of New York v. New Jersey, 431 U.S. at
17 n. 13, 97 S.Ct. at 1515 n. 13. The ordinance is not so
unique and uncommon that it can be characterized as wholly
unexpected and disruptive. As discussed earlier, the
inconvenience of the immobilization can be promptly alleviated
by posting a bond, and complete payment of all fines at one
time is not required.
For these reasons, plaintiffs have not stated a claim under
the ex post facto clause or bill of attainder clause. Nor does
the retroactive effect of the ordinance violate due process.
Defendants' motion to dismiss these claims is also granted.
Accordingly, the defendants' motion to dismiss is granted in
part and denied in part, and plaintiffs' motion for summary
judgment on the due process claim is denied in part and
granted in part.*fn24 It is so ordered.