Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 82 C 1607--William T. Hart, Judge
Before: CUMMINGS, Chief Judge, WOOD, Circuit Judge, and WRIGHT, Senior Circuit Judge.*fn*
CUMMINGS, Chief Judge. This appeal involves a certified class action brought under 42 U.S.C. § 1983 against the City of Chicago and certain individuals challenging the constitutionality of the City's procedures for towing recovered stolen automobiles and seeking reimbursement to class members for towing and storage charges assessed against them by the City. The only named plaintiff, Coad Miller, owned a 1973 Volkswagen that was stolen on November 5, 1981, found by two Chicago police officers and towed to a city pound. Plaintiff was notified by mail that the vehicle was recovered and paid defendant City of Chicago a $45 towing charge and a $5 one-day storage charge to recover his car. He did not request a hearing to contest the charges. The five individual John Doe defendants are the two police officers who recovered plaintiff's car and three others who caused the car to be towed to the pound. The relief requested was an order preserving certain municipal records concerning stolen cars, class certification, a declaratory judgment and injunction as to the City's procedures for towing stolen cars and the establishment of a fund to reimburse class members for towing and storage charges and to provide for attorney's fees and costs.
The district court in a November 22, 1983, memorandum opinion concluded that the City's practice of towing recovered stolen vehicles without prior notice to owners violated the due process clause of the Fourteenth Amendment and granted plaintiff's cross-motion for summary judgment (R. Item 29).*fn1 Defendant City of Chicago, whose cross-motion for summary judgment was denied, and amici curiae (see infra note 2) argue that pre-tow notice and hearing are not constitutionally required under these circumstances and that the City's post-tow notice and hearing procedures satisfy the requirements of due process. For the reasons set forth below, the judgment of the district court declaring the procedures and practices of the City relating to the immediate towing of recovered stolen vehicles unconstitutional and enjoining the City from towing and storing such vehicles without prior owner approval for towing or storage is reversed.
The City of Chicago's procedures regarding the recovery of stolen vehicles are set forth in Section 27-367 of the Municipal Code of Chicago and in an internal Chicago Police Department document, Chicago Police Department General Order 75-5. General Order 75-5 requires the immediate towing of certain classes of vehicles, including vehicles that have been reported stolen where the vehicle's owner is not present at the location of the recovery (R. Item 29). The Order also requires police personnel of the Automotive Pound Section Headquarters to "prepare and mail a notice * * * to vehicle owners, advising them of the towing and the hearing" (id.). Section 27-367 of the Municipal Code of Chicago states that the owner of a legally impounded vehicle may obtain immediate possession thereof by furnishing evidence of identity and ownership and paying a towing fee of forty-five dollars (sixty-seven dollars for trucks and commercial vehicles) and storage costs of five dollars per day. Payment of these charges may be challenged, however, pursuant to Section 27-367, by means of 1) requesting a hearing to be held within twenty-four hours at which the validity of the tow may be contested (i.e., here whether the car was in fact reported stolen) or 2) securing immediate possession of the vehicle by depositing twenty-five dollars with the police and requesting a hearing to be held within seven days at which the validity of the tow may be contested. (Municipal Code of Chicago, § 27-367, R. Item 1, Exhibit A). The notice sent plaintiff Miller stated:
You are entitled to additional information regarding the reason for this tow, whether the vehicle can be immediately released and whether it is subject to charges. You are also entitled to a hearing, if you desire, to determine the validity of the tow or extended hold of your vehicle and any towing or storage charges (Br. 7; R. Item 16, Attachment F).
The notice also informed plaintiff how the hearing could be arranged.
Illinois law empowers police officers "to remove or cause to be removed to the nearest garage or other place of safety any vehicle" which has been reported "stolen or taken without the consent of its owner." ILL. REV. STAT. ch. 95 1/2, § 11-1302 (1983). Additionally, ILL. REV. STAT. ch. 95 1/2, § 4-202 (1983), provides that when municipal police receive notification of a stolen vehicle they "will authorize a towing service to remove and take possession of the * * * stolen * * * vehicle."
As summarized, supra, on March 15, 1982, plaintiff Miller filed a complaint with the United States District Court for the Northern District of Illinois requesting that the towing provisions set forth in the Municipal Code of Chicago and the Police Department Order be declared unconstitutional, that the City be enjoined from enforcing the provisions, and that a fund be established from which the suggested class of plaintiffs could recover towing and storage charges assessed within the relevant statute of limitations period. In a November 18, 1983, memorandum opinion the district court certified the class action and granted plaintiffs' motion for summary judgment, ruling that the defendants' procedures for towing stolen automobiles were unconstitutional because pre-tow notice was not provided to owners of stolen vehicles. Miller v. Chicago, No. 82 C 1607 (N.D. Ill. Nov. 18, 1983) (R. Item 29). In its second memorandum opinion the district court redefined the class, required notice by mail to the class members, directed the City to submit revised proposals for Vehicle Theft Report Forms and Recovery Procedures, and acknowledged receipt of the City's proposed Claims Procedure (R. Item 49). The final judgment order in the case was entered on August 22, 1984, and enjoined the defendants from towing recovered stolen vehicles without prior notice, required the City to provide notice of the class action to plaintiff class, and set forth a system for recovery of towing and storage charges (App. 3). On appeal defendants challenge the district court's ruling on the constitutionality of the towing procedures, the inclusion of certain persons in the plaintiff class and the award of retroactive relief. Four insurers*fn2 and the National Automobile Theft Bureau, Inc. have filed a brief amici curiae urging reversal of the judgment.
The constitutional question presented by this case is whether the defendants' procedures of towing stolen vehicles without giving prior notice to the vehicle owner constitute a deprivation of property without due process of law in violation of the Fourteenth Amendment. Defendants concede that the towing of a recovered vehicle reported stolen amounts to a temporary deprivation of property (Br. 16). Both parties agree that the property interest at issue here is the use of a vehicle (Br. 16; R. Item 19). See Sutton v. Milwaukee, 672 F.2d 644, 646 (7th Cir. 1982). In the district court plaintiff attacked the City's procedures on the basis of their failure to provide for pre-tow or pre-deprivation notice (R. Item 19, at pp. 2, 5-6, Memorandum in Support of Plaintiffs' Cross Motion for Summary Judgment).*fn3 He asserts that the City should provide an opportunity to owners of located stolen vehicles to recover their own property and thereby avoid payment of towing and storage costs (id.) No pre-deprivation hearing is requested in the complaint (R. Item 1 at pp. 5-6) or on appeal (Pltf. Br. 23-24) and, indeed, one would serve no purpose under these circumstances where such a hearing would not appear to hasten the return of the recovered stolen vehicle to its owner and where pre-tow notice itself may preempt the deprivation of property.
The Supreme Court has often asserted that the requirement of due process "is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481, 33 L. Ed. 2d 484, 92 S. Ct. 2593 ; see United States v. Eight Thousand Eight Hundred & Fifty Dollars ( $8 ,850) in United States Currency, 461 U.S. 555, 564, 76 L. Ed. 2d 143, 103 S. Ct. 2005 ; Schweiker v. McClure, 456 U.S. 188, 200, 72 L. Ed. 2d 1, 102 S. Ct. 1665 . In Mathews v. Eldridge, 424 U.S. 319, 335, 47 L. Ed. 2d 18, 96 S. Ct. 893, the Court specifically considered in which situations due process requires notice and a hearing prior to a deprivation of property. In answering this question in the negative where benefits were terminated subject to later notice and hearing Mathews offered a three-part standard for resolution of the issue. The inquiry requires consideration of 1) "the private interest that will be affected by the official action," id., including "the importance of the private interest and the length or finality of the deprivation," Logan v. Zimmerman Brush Co., 455 U.S. 422, 434, 71 L. Ed. 2d 265, 102 S. Ct. 1148 ; see Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 19, 56 L. Ed. 2d 30, 98 S. Ct. 1554 ; 2) "the risk of an erroneous deprivation of such interest through the procedures used, and the probable value * * * of additional or substitute procedural safeguards," Mathews, 424 U.S. at 335; and 3) "the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute proceedings would entail." Id. These factors must be balanced in some manner, see Sutton, 672 F.2d at 645-646, but Mathews gives no indication as to the relative weight properly accorded each. It is of some help to apply the Mathews tripartite test in light of the general rule, recently reiterated by the Supreme Court, that "absent an 'extraordinary situation' the power of the state to seize a person's property may not be invoked without prior notice and an opportunity to be heard." United States v. $8 ,850, 461 U.S. at 562 n.12; see Fuentes v. Shevin, 407 U.S. 67, 90, 90 n.22, 32 L. Ed. 2d 556, 92 S. Ct. 1983 ; Boddie v. Connecticut, 401 U.S. 371, 378-379, 28 L. Ed. 2d 113, 91 S. Ct. 780 ; Breath v. Cronvich, 729 F.2d 1006, 1010 (5th Cir. 1984), certiorari denied, 469 U.S. 934, 105 S. Ct. 332, 83 L. Ed. 2d 268; but cf. Sutton, 672 F.2d at 647 (questioning the continued validity of the "extraordinary situation" rule stated in Fuentes, supra). Thus pre-deprivation notice and hearing represent the norm and the state must foward [sic] important reasons to justify a departure therefrom.
In Fuentes the Court clarified what constituted an extraordinary situation obviating the need for pre-deprivation notice and hearing. It noted that in each case where the Court had allowed such ...