the risk that a vehicle not actually abandoned by its owner might be towed is not negligible. It is impossible to account for all the legitimate reasons an owner might leave a vehicle at some spot for a lengthy period of time. Particularly when the vehicle is not in such a location as to cause a safety hazard or, as here, on private property, the risk that an apparently abandoned vehicle is not actually abandoned is even greater.
The second part of the second Mathews factor requires us to consider the probable value of any additional or substitute safeguards. Here, the additional or substitute procedure would be notification by registered or certified mail. Such notification would enable the owner of a vehicle deemed abandoned to either move it, thus obviating any need for towing, or to explain a legitimate reason for its being where it is. Because the Illinois Motor Vehicle Code already requires notification of the owner of a towed vehicle by certified mail after towing, 625 ILCS 5/4-205, requiring such notification before towing is no added burden on the government in cases where there is no emergency need for the towing and where, as here, a seven-day waiting period after the Police Notice is provided for.
Finally, the third Mathews factor requires us to consider the governmental interest involved. Because a seven-day waiting period is prescribed, the government's interest in immediate towing is evidently low. In addition, the policy of the Arlington Heights police, instituted since Perry's car was towed, of not towing any vehicles "abandoned" on private property that do not pose a traffic, safety, or health hazard, but of advising the property owner that towing the vehicle is his or her sole responsibility is further indication of the government's negligible interest involved.
The decision in Graff was issued before the Supreme Court enunciated the Mathews test, but the court's analysis, balancing the private interests in access to and use of one's automobile with the government's interest in towing presumably abandoned vehicles, was along essentially similar lines. Graff, 370 F. Supp. at 980-83. We believe that analysis would be undisturbed under a Mathews analysis.
A later decision in this district held that application of the Mathews test requires notice by certified mail for all towed cars prior to disposal and found that the provision of the Illinois Motor Vehicle Code providing for only first-class mail notice for vehicles more than seven years old and subsequent disposal if no response is received within ten days violates due process. 625 ILCS 5/4-209(b); Kohn v. Mucia, 776 F. Supp. 348, 356-59 (N.D. Ill. 1991). We note that the provisions of the Illinois Motor Vehicle Code at issue, see note 3, supra, have remained materially unchanged since the decisions in Graff and Kohn were issued.
The Village challenges Perry's claim for declaratory relief on two grounds. It states first that Perry's claim is moot because, since the filing of this lawsuit, the Village has adopted a policy that complies with due process and that excludes Village towing of vehicles on private property that are similarly situated to that of the Plaintiff. On the contrary, the challenged ordinance is still on the books; it has been neither repealed nor altered. The change is only in the form of an internal policy order within the Arlington Heights Police. There is no evidence that the Village Council is even aware of the police policy, or whether or not it would direct enforcement of the Ordinance if it were aware of the policy. Nor is there any guarantee that the police policy would change in response to changes leadership within the department. Furthermore, the fact that the policy directive was made after Perry's complaint was filed, and that the case received some publicity in local Arlington Heights newspapers makes us less confident that a mere policy directive is sufficient to render Perry's claims for declaratory judgment moot.
The Village secondly states that Perry's challenge to the validity of the ordinance must fail because the Illinois Motor Vehicle Code has withstood a due process challenge, citing Holstein v. City of Chicago, 29 F.3d 1145, 1148-49 (7th Cir. 1994). The Village's reliance on Holstein is misplaced. The plaintiffs' cars in Holstein were towed because they were illegally parked; there was no claim that they had been abandoned. The Holstein court cited Sutton v. City of Milwaukee, 672 F.2d 644 (7th Cir. 1982), which holds that the towing of illegally parked cars does not require predeprivation notice and hearing, and held that in such cases the post-towing procedures provided by statute were adequate. Holstein, 29 F.3d at 1148. Sutton carefully distinguishes its holding in regard to the towing of illegally parked cars from the holding of Graff requiring notice and an opportunity to be heard before an abandoned car may be towed. Sutton, 672 F.2d at 647 ("Advance notice is feasible in the case of abandoned cars because they are not about to be moved by their owners--that is, of course, the very reason why the authorities take an interest in abandoned vehicles.")
If anything, the circumstances in this case are even less compelling than are those in either Graff or Kohn for a denial of notice and an opportunity for a hearing. We see no reason to upset the conclusions of either. We therefore reassert the holdings of Graff and Kohn that adequate notice and an opportunity for a prior hearing are required before a presumably abandoned vehicle whose owner is readily identifiable
and that does not pose a safety hazard is towed, that certified or registered mail are required to notify a known owner that a vehicle has been seized and is in jeopardy of disposal,
and that an opportunity to be heard on the propriety of a seizure is required before payment of fees may be demanded as a prerequisite of the release of the vehicle. Kohn, 776 F. Supp. at 356-59; Graff, 370 F. Supp. at 983-85.
For the foregoing reasons, we hold that the provisions of the Arlington Heights Municipal Code that permit the towing of "abandoned" motor vehicles on private property displaying license plates or other registration sufficient to permit the identification of the owner without notice by registered or certified mail setting forth the legal and factual basis for the presumption of abandonment and without a prior hearing on the abandonment issue, that permit a seized vehicle to be disposed of without prior notice to a known owner by certified or registered mail, and that require payment of fees as a precondition to release of an impounded vehicle without an opportunity to be heard on the propriety of the seizure, are in violation of the due process requirements of the Fourteenth Amendment of the U.S. Constitution.
Plaintiff Rixson Merle Perry's motion for summary judgment on his claims for declarative relief is granted.
Paul E. Plunkett
UNITED STATES DISTRICT JUDGE
DATED: September 28, 1995