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HOLSTEIN v. CITY OF CHICAGO

September 29, 1992

ROBERT HOLSTEIN, et al., Plaintiff,
v.
CITY OF CHICAGO, Defendant.


Williams


The opinion of the court was delivered by: ANN CLAIRE WILLIAMS

Plaintiffs Robert Holstein ("Holstein") and Brian Grove ("Grove"), individually and on behalf of others, brought this declaratory judgment action against defendant City of Chicago ("City"). Count I, brought by Grove, and Count III, brought by Holstein, both allege that Chicago Municipal Code § 9-92-030, which governs when cars may be towed by the City, is unconstitutional because it affords the City the power to tow cars arbitrarily. Count II, brought by Grove, alleges that post-tow hearings that are held pursuant to Chicago Municipal Code § 9-92-080 are conducted in a manner which deprives persons of their constitutional right to due process. The City has brought this motion to dismiss Counts I-III *fn1" of plaintiffs' First Amended Complaint (the "complaint"). In the motion to dismiss, City makes two arguments: (1) that the City is entitled to dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction (a) because plaintiff Grove does not allege an actual case or controversy in Counts I and II and (b) because plaintiff Holstein's claim in Count III is barred by waiver and res judicata; and (2) that the City is entitled to dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) because plaintiffs fail to state a claim upon which relief may be granted. For the reasons set forth below, the defendant's motion to dismiss Counts I-III is granted.

 Background

 According to the allegations contained in the plaintiffs' complaint, facts surrounding two separate incidents give rise to plaintiffs' claim: one incident involves the towing of plaintiff Grove's automobile, and the other involves the towing of plaintiff Holstein's car.

 The Grove Incident

 Plaintiff Grove held a valid City Department of Public Works "1991 Resident Parking Program" guest permit, which allowed him to park his car on city streets within a certain area near Comiskey Park. On the evenings of August 1, 1991 and August 2, 1991, Grove parked his car within the designated area of the Parking Program. On both evenings, the City towed Grove's car. On both occasions, Grove immediately retrieved his car from the City auto pound.

 Chicago Municipal Code § 9-92-080 provides for post-tow hearings so that persons may contest the validity of tows that occur. Grove scheduled and appeared for such a post-tow hearing, which took place on August 9, 1991 before Officer Beck, one of the City's hearing officers. Grove presented evidence to the effect that he was a valid permit holder under the Resident Parking Program, and that he had not received tickets for the violations which had given rise to the tows. Grove claims that this evidence was not considered by Officer Beck in his holding that the tows were valid. This finding was based on ticketing officer Hycner's having deemed Grove's car a "hazard. " Officer Hycner was not present at the post-tow hearing.

 In an attempt to overturn the tow determination, Grove contacted Officer Hycner to try and change the officer's mind about the tow authorizations he had made, but this was apparently to no immediate avail. On October 11, 1991, Grove joined in the instant action individually and as a class representative.

 On November 7, 1991, defendant City informed Grove that it had determined that both of the tows of his vehicle were improper, and set in motion a procedure to refund the towing and storage fees that Grove had paid in connection with the August 1, 1991 and August 2, 1991 tows.

 The Holstein Incident

 Holstein retrieved his vehicle from the City auto pound the next day. By phone, Holstein requested a post-tow hearing, and was put in contact with Officer Fountas, a hearing officer, who told Holstein that he would inspect the site of the tow. Officer Fountas contacted Holstein by phone several days later and told Holstein that he had inspected the site and had determined that the tow was proper.

 Holstein was not satisfied with the phone hearing and requested, in writing, an in-person hearing. Such a hearing was scheduled for March 25, 1991. Prior to the hearing, on February 28, 1991 Holstein contested the ticket he had received in connection with the December 8, 1990 tow, and that ticket was dismissed. At the in-person post-tow hearing on March 25, 1991, Holstein, his attorney, and a court reporter were present for the proceedings. Holstein was not allowed to question the ticketing officer and was not allowed to present evidence that his ticket for the incident had been dismissed, and Officer Fountas concluded the hearing by refusing to reverse his prior determination that the tow had been proper.

 I. Counts I & II

 In Counts I & II of this declaratory judgment action, plaintiff Grove asks the court to strike Chicago Municipal Code § 9-92-080 and the City's post-tow hearing procedures on the grounds that they are unconstitutional. Defendant City argues that these Counts must be dismissed under Federal Rule of Civil Procedure 12(b)(1) because the court does not have subject matter jurisdiction over this action. City further contends that these Counts must be dismissed because plaintiff Grove has no actual case or controversy. The court agrees.

 Article III of the Constitution limits the exercise of judicial power to "cases" and "controversies." Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 239, 57 S. Ct. 461, 463, 81 L. Ed. 617 (1937); J.N.S., Inc. v. State of Indiana, 712 F.2d 303, 305. This limitation applies to actions brought under the Declaratory Judgment Act, 28 U.S.C. § 2201, just as it does for actions ...


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