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PERRY v. VILLAGE OF ARLINGTON HTS.

September 28, 1995

RIXSON MERLE PERRY, Plaintiff,
v.
VILLAGE OF ARLINGTON HEIGHTS, Defendant.



The opinion of the court was delivered by: PLUNKETT

 This case arises out of the seizure of a vehicle owned by Plaintiff Rixson Merle Perry by Defendant Village of Arlington Heights and its code enforcement officer Daniel C. Tarry. *fn1" Perry challenges the constitutionality of the Village ordinance authorizing the seizure of abandoned vehicles and seeks compensatory damages against the Village. Plaintiff filed this action under 42 U.S.C. ยง 1983 (1988) requesting compensatory damages and declaratory relief. Plaintiff moves for summary judgment on his claims for declaratory relief.

 For the reasons stated below, Perry's motion for partial summary judgment is granted.

 Facts

 On October 27, 1992, the Plaintiff's 1975 Ford LTD automobile was seized by towing, at the direction of an employee of the Defendant Village of Arlington Heights ("Village"), from a parking lot at 509 North Dunton Street. Before the seizure, the Village had determined Perry's identity and mailing address by inquiry with the Illinois Secretary of State, but made no attempt to notify him by mail until after the seizure. On October 28 the Village sent Perry a notice informing him that payment of certain fees was a precondition to release of the automobile from the Village's custody. At no time did the Village provide Perry an opportunity for a hearing as the propriety of either the seizure of the automobile or of the payment of fees as a precondition of its release. Perry paid the required fees and regained custody of his automobile on October 30.

 The seizure of Perry's automobile and subsequent demand for payment of fees were pursuant to section 18-206 of the Arlington Heights Municipal Code, which incorporates, by reference, those sections of the Illinois Compiled Statutes that prohibit abandonment of vehicles and provide procedures for the towing and disposal of abandoned vehicles. *fn2"

 Discussion

 In order to prevail on a summary judgment motion, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, [must] show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). At this stage, we do not weigh evidence or determine the truth of asserted matters. We simply determine whether the there is a genuine issue for trial, i.e., "whether a proper jury question was presented." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 The Plaintiff challenges the municipal ordinance as violative of his Fourteenth Amendment due process rights on four grounds: (1) it does not require the Village to provide the owner of an allegedly abandoned vehicle notification by certified or registered mail setting forth the legal and factual basis for the presumption of abandonment prior to the Village's directing that such vehicle be seized; (2) it does not require the Village to afford the owner of an allegedly abandoned vehicle an opportunity for a hearing in which the owner may contest the presumption of abandonment prior to seizure; (3) it does not require the Village to use certified or registered mail to notify a vehicle owner that the vehicle has been seized and is in jeopardy of disposal; (4) it does not require the Village to afford the owner of a seized vehicle the opportunity for a hearing wherein the propriety of the seizure may be contested prior to the Village's demanding payment of fees as a precondition to release of the seized vehicle.

 In a case decided in this district twenty-one years ago on virtually identical facts, a three-judge panel found the portion of the Illinois Motor Vehicle Code *fn3" authorizing the seizure and disposal of "abandoned" vehicles unconstitutionally deficient in its failure to provide adequate notice and opportunity for a hearing prior to seizure. Graff v. Nicholl, 370 F. Supp. 974 (N.D. Ill. 1974). In Graff, the plaintiff was owner of a vehicle that had been parked in the public street across from his house in Chicago with one axle supported by a milk crate. After a month, a city police officer placed a "Police Notice" on the windshield of the car, stating that the car was in violation of the Municipal Code and would be towed and impounded by the police unless it was moved. When the officer returned ten days later, he found the car at the same spot, apparently unmoved and in the same condition, and the notice gone. He then ordered the vehicle towed. The notice placed on the windshield was the only notice directed to the plaintiff prior to the towing of the vehicle. After the vehicle was towed, police determined the owner's identity and sent him a registered letter stating that he could recover his car by payment of a fee. Because he was unable to pay the fee, the vehicle was not released. The applicable statute provided for destruction of the plaintiff's car when fees are not paid within 30 days from mailing of the letter of notification. The plaintiff then brought suit asking for declarative and injunctive relief. The Graff court granted the plaintiff's request for declaratory relief, "declaring those provisions of the Illinois Vehicle Code . . . which permit the towing and detention of 'abandoned' motor vehicles, displaying current license plates and/or city registration decals, without any prior notice and an opportunity for a hearing unconstitutional as a violation of the Due Process Clause of the Fourteenth Amendment." Id. at 987. The court also held that "where license plates or other registration is displayed on the vehicle, thus enabling identification of the owner," a Police Notice placed on the windshield "must be supplemented by the more dependable notice by registered or certified mail. In addition . . . the notice should also advise the recipient of the legal and factual basis for the presumption of abandonment." Id. at 984.

 The Graff court also held that "a hearing must be conducted before one's motor vehicle is towed as abandoned property, or after the impoundment if vehicles in a state of disrepair are towed immediately." Id. at 985. Furthermore, a "requirement that towing and storage charges be paid as a precondition to the release of an abandoned vehicle, regardless of whether the owner has been charged with the misdemeanor of abandonment . . . or charged but acquitted . . . breaches fundamental fairness and further deprives vehicle owners of their property without due process of law." Id.

 The Supreme Court, in Mathews v. Eldridge, 424 U.S. 319, 335, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976), set forth a three-part test for deciding what procedural safeguards are necessary before the government can deprive someone of property. See United States v. James Daniel Good Real Property, 126 L. Ed. 2d 490, 114 S. Ct. 492, 501 (1993); Heller v. Doe, 125 L. Ed. 2d 257, 113 S. Ct. 2637, 2648 (1993); Chaney v. Suburban Bus Div., 52 F.3d 623, 627 (7th Cir. 1995). The Mathews test requires a court to consider three factors: (1) the private interest that will be affected by the deprivation; (2) the risk of an erroneous deprivation of that interest by the procedures used, and the probable value, if any, of additional or substitute safeguards; (3) and the government's interest, including the function involved and the fiscal or administrative burdens that the additional or substitute procedural requirement would entail. Mathews, 424 U.S. at 335.

 The private interest affected by the towing of a presumably abandoned automobile is the "uninterrupted access to and use of one's automobile." Graff, 370 F. Supp. at 980. "Automobiles are not only costly, but are often indispensable to 'day-to-day living in American society.'" Kohn v. Mucia, 776 F. Supp. 348, 358 (N.D. Ill. 1991) (quoting Graff). The private interest in receiving notice and an opportunity for a hearing before the towing of a presumably abandoned vehicle is therefore substantial.


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