The opinion of the court was delivered by: ASPEN
MARVIN E. ASPEN, UNITED STATES DISTRICT JUDGE
The plaintiff, William Kohn, brought this three-count action under 42 U.S.C. 1983, challenging the validity of certain sections of the Illinois Vehicles Code, and certain related sections of the Municipal Code of Chicago which authorize law enforcement agencies to seize and dispose of motor vehicles. Kohn filed suit on behalf of himself and all others similarly situated, against the City of Chicago; Joseph Mucia, individually, and in his capacity as Commanding Officer of the Automotive Pounds Section, Department of Police, City of Chicago; Leroy Martin, Superintendent of the Chicago Police Department, individually, in his official capacity and on behalf of all others similarly situated; James O'Grady, Sheriff of Cook County, individually, in his official capacity and on behalf of all others similarly situated; Jeremy Margolis, Director of the Illinois Police Department;
Edward Collins, a Chicago Police Officer; and John Doe, a person of unknown identity who tows vehicles to the Chicago Police Department Auto Pound.
The allegations of the amended complaint, and the additional submissions by the parties reveal the following facts. Kohn was the owner of a 1976 BMW automobile. Kohn's car was properly registered with the State of Illinois, and displayed current Illinois license plates. On July 24, 1989, Collins ordered defendant John Doe to tow Kohn's car from its legal parking space across the street from Kohn's apartment, at 7726 North Eastlake Terrace, Chicago, Illinois. Kohn did not personally receive prior notice of the towing nor had a notice been posted on the car that it would be towed.
The Chicago Police Vehicle Tow Report described the tow as both an abandoned tow and an immediate ("hazard") tow. The report states that the car was "in a state of disrepair, rendering it incapable of being driven," and that it was "obstructing traffic flow" and was a "hazzard [sic] to traffic."
Kohn alleges that the specific description of disrepair noted in the report, "2 flats, no grill, rust all around," was "in part inaccurate," but he does not specify in what respects the report was inaccurate. Kohn maintains that the car was "intact," in "operating condition," and not abandoned. Thus, he disputes that the car was incapable of being driven.
Subsequent to impounding Kohn's car on July 24, 1989, the police sold it for scrap metal on August 14, 1989. The police acted under the authority of III. Rev. Stat. ch. 95 1/2 § 4-209 (Disposal of Unclaimed Vehicles Without Notice) which provides for the sale, as junk, of impounded vehicles that are more than seven years old if disposition information has not been received from the registered owner within ten days of impoundment. Kohn alleges that he did not receive notice of the towing, impoundment or sale prior to December, 1989.
Count I of the amended complaint seeks an order certifying plaintiff and defendant classes, and a declaration that certain provisions of the Illinois Vehicle Code, Ill. Rev. Stat. ch. 95 1/2 § § 4-201 through 4-214, are unconstitutional. Kohn claims that these sections violate the due process and equal protection clauses of the Fourteenth Amendment, and his Fourth Amendment right to be free from unreasonable searches and seizures. The challenged provisions provide for, inter alia, the removal and disposition of abandoned vehicles and vehicles creating a traffic hazard, and for notice to the owners of these vehicles. Count I also asks us to enjoin defendants Martin and O'Grady, and the defendant classes they represent, and defendants Mucia, Margolis, and the City of Chicago, from acting under the authority of Chapter 95 1/2 § § 4-201 through 4-214. Kohn complains that the provisions do not sufficiently define the requisite appearance characteristics that would allow a police officer to presume a vehicle is abandoned; that they permit seizure and detention of motor vehicles without prior notice and an opportunity for a hearing in violation of due process; that they authorize seizure and detention of motor vehicles without inquiry into probable cause for seizure and detention; and that they authorize procedures which allow for the sale of impounded motor vehicles without proper notice and opportunity for hearing.
Count II of the amended complaint claims that sections 27-200, 27-360, and 27-372
of the Municipal Code of Chicago violate the fourth and fourteenth amendments in essentially the same respects as the Illinois Revised Statute provisions, and asks the court to enjoin defendants Mucia, Martin, and the City of Chicago from following the procedures in sections 27-360 and 27-372 of the Municipal Code of Chicago. Conversely, Count II also seeks an injunction enjoining defendants Mucia, Martin, and the City of Chicago from failing to follow the certified mail notice provisions of sections 27-423 through 27-429
of the Municipal Code of Chicago. Count III seeks damages of $ 30,000 for the plaintiff, and damages to the plaintiff class of an undetermined amount.
II. Plaintiff Class Certification
Kohn seeks certification of two plaintiff classes under Fed. R. Civ. P. 23. The first class consists of all Illinois residents (1) whose then currently licensed or registered motor vehicles were more than seven years old at the time they were seized, detained and impounded as abandoned, lost, stolen or unclaimed vehicles by Illinois law enforcement agencies; (2) whose motor vehicles were subsequently sold or destroyed without their consent, or may be seized, detained and impounded and sold or destroyed without their consent; and (3) who did not or may not receive notice by certified United States mail, return receipt requested, of the seizure, detention and impoundment before the destruction or sale of their motor vehicles by law enforcement agencies ("Class I").
Kohn's second proposed class consists of all persons residing in Illinois (1) whose then currently licensed or registered motor vehicles were seized, detained and impounded as abandoned, lost, stolen or unclaimed vehicles by the City of Chicago or its agents or may be so seized, detained and impounded by the City of Chicago or its agents or may be so seized, detained and impounded, pursuant to III. Rev. Stat. ch. 95 1/2 § § 4-201, 4-203, 4-208 and 4-209, or pursuant to § § 27-360, 27-372, and 27-423 through 27-429 of the Municipal Code of Chicago; (2) whose vehicles were subsequently sold or destroyed without their consent, or may be seized, detained and impounded and sold or destroyed without their consent, and (3) who did not or may not receive notice by certified United States mail, return receipt requested, of the seizure, detention and impoundment before the destruction or sale of their motor vehicles by or at the direction of the City of Chicago or its agents; or whose vehicles were not safely kept for a period of thirty days from the date of their impoundment by the City of Chicago or its agents ("Class II").
In order to obtain class certification, a plaintiff has the burden of showing that the class should be certified and that the requirements of Rule 23 are met. Valentino v. Howlett, 528 F.2d 975, 978 (7th Cir. 1976). Federal Rule of Civil Procedure 23(a) provides that:
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
We begin with the requirement that a plaintiff class must be so numerous that the joinder of all the members is impracticable. Fed. R. Civ. P. 23(a)(1). The size of the class and the impracticability of joinder must be positively shown and not merely speculative. Marcial v. Coronet Ins. Co., 880 F.2d 954 (7th Cir. 1989); Kinzler v. New York Stock Exchange, 53 F.R.D. 75 (S.D.N.Y. 1971).
To prove numerosity Kohn offers evidence that the City of Chicago disposed of 159,287 vehicles between July 24, 1988 and October, 1990. Kohn's complaint also includes the first page of a Contract Sales Report produced by the City defendants at a deposition. It shows, on that one page at least, that the majority of the cars destroyed were seven years old or older. Kohn accordingly posits that "even if only 10% of [all vehicles disposed of] were older than seven years and had a valid registration at the time of the towing, that would still amount to nearly 16,000 potential class members." Although he admits that figure is not precise, Kohn argues that when it is "difficult to determine the precise number of members in the class, the plaintiff need not allege an exact figure: a good faith estimate is sufficient." Harris v. General Dev. Corp., 127 F.R.D. 655, 660 (N.D.III. 1989); see also Long v. Thornton Township High School Dist., 82 F.R.D. 186, 189 (N.D.III. 1979). We do not question that proposition, nor its general applicability in this case. But Kohn's showing as to the possible size of the classes in reliance on that proposition is incomplete. In both Harris and Long the plaintiffs presented evidence of a large number of class members; it was only the exact number of class members that was in question.
In the present case, however, the question is not "what is the precise size of the class," but rather "is the class sizable at all?" Although he has presented evidence of the number of cars disposed of in a two year period by the City of Chicago, and has provided an indication that many of these cars were older than seven years, he has presented no basis in fact regarding whether any of these vehicles were properly registered. Leaving that crucial deficiency aside, even were we willing to assume, at least for the initial certification of the classes, that a sizeable number of vehicles disposed of were both older ...