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November 6, 1995

ADA VAN HARKEN, et al., Plaintiffs,

The opinion of the court was delivered by: SHADUR

 Ada Van Harken, Alex French and Michael Bennett, both individually and as class representatives, have brought suit against the City of Chicago ("City"), charging that City's Administrative Adjudication of Parking Violations Ordinance (the "Ordinance," Chicago Municipal Code of 1990 *fn1" §§ 9-100-010 et seq.) violates the Due Process Clauses of both the United States and Illinois Constitutions. Plaintiffs assert their federal claims under 42 U.S.C. § 1983 ("Section 1983") and their state law claims under the supplemental jurisdiction provision of 28 U.S.C. § 1367(a).

 City has moved to dismiss all of plaintiffs' claims under Fed. R. Civ. P. ("Rule") 12(b)(6), and the motion is fully briefed. For the reasons stated in this memorandum opinion and order, the plaintiff class (defined somewhat more narrowly than in plaintiffs' Second Amended Complaint) is certified, and City's motion is granted in full. All of plaintiffs' claims and hence this action are dismissed with prejudice. *fn2"


 Before 1990 violations of City's parking regulations were adjudicated in the Municipal Court of Chicago (1984 Code § 27-365(a)). In 1990 City revamped that system, moving the adjudicative function out of the Municipal Court and into a newly created administrative framework within City's Department of Revenue (Code § 2-80-040(m)). That move was made pursuant to, and the new administrative procedure was modeled on, Illinois Vehicle Code § 11-208.3 (625 ILCS 5/11-208.3).

 Under the administrative procedure created by the Ordinance, when a person with authority to enforce the parking ordinance *fn3" observes a violation of any parking regulation, the observer must either serve the notice of violation on the operator of the vehicle (if present) or affix the notice to the vehicle in a conspicuous place (Code § 9-100-030(b)). In addition to other required information, *fn4" the notice informs the ticket recipient that within seven days from the date of the notice the ticket recipient may (Code § 9-100-050(a)):

(1) pay the indicated fine; or, in the manner indicated in the notice, either (2) submit the materials set forth in Section 9-100-070 to obtain an adjudication by mail; or (3) request an administrative hearing as set forth in Section 9-100-080 to contest the charged violation.

 If the ticket recipient fails to choose any of those three options, a second notice of violation is sent (Code § 9-100-050(d)). Once again the ticket recipient has the same three options (id.). If the ticket recipient fails to choose any of the options within 14 days after receiving the second notice, a determination of liability will be entered in the amount of the fine indicated on the notice (id.).

 Some common elements are shared by the adjudication-by-mail and administrative-hearing options. First, each is conducted by a "hearing officer appointed by the city parking administrator" (Code §§ 9-100-070(a) and 9-100-080(a)). Second, the standard and burden of proof are the same (Code §§ 9-100-070(c) and 9-100-080(e)):

No violation may be established except upon proof by a preponderance of the evidence; provided, however, that a parking violation notice, or a copy thereof, issued in accordance with Section 9-100-030 shall be prima facie evidence of the correctness of the facts specified therein.

 Finally, the ticket recipient is "limited to one or more of the following grounds" for challenging the ticket (Code § 9-100-060):

(1) That the respondent was not the owner or lessee of the cited vehicle at the time of the violation;
(2) That the cited vehicle or its state registration plates were stolen at the time of the violation;
(3) That the relevant signs prohibiting or restricting parking were missing or obscured;
(4) That the relevant parking meter was inoperable or malfunctioned through no fault of the respondent;
(5) That the facts alleged in the parking violation notice are inconsistent or do not support a finding that the specified regulation was violation [sic].

 Under the adjudication-by-mail option, the ticket recipient may provide documentary evidence that rebuts the charge and a written statement setting forth the facts relevant to establishing a defense (Code § 9-100-070(b)). In an administrative hearing the ticket recipient may appear pro se or may be represented by an attorney (Code § 9-100-080(b)), formal rules of evidence do not apply (Code § 9-100-080(c)) and the hearing officer may issue subpoenas to secure the attendance and testimony of witnesses (Code § 9-100-080(d)).

 After considering the materials submitted by mail, or after the administrative hearing takes place, the hearing officer enters a determination of no liability or of liability in the amount of the fine. That determination becomes a final judgment for purposes of the Administrative Review Law of Illinois (Code §§ 9-100-070(d) and 9-100-090(a)).

 Class Certification

 Rule 23(c)(1) mandates that a district court determine whether a class should be certified "as soon as practicable" after the commencement of the action. Whatever imprecision is inherent in the use of that phrase, it is clear that "as soon as practicable" means before a decision on the merits ( Koch v. Stanard, 962 F.2d 605, 607 (7th Cir. 1992) and cases cited there).

 In this instance the waters have been muddied by City's prompt filing of a motion to dismiss plaintiffs' initial effort at a complaint, followed by delays (in the form of continuances while plaintiffs' counsel was recasting the allegations rather than briefing that original motion) until plaintiffs' counsel refashioned their pleading into its ultimate form as the Second Amended Complaint (referred to here, for convenience, simply as the "Complaint"). City then refocused its attack on that final pleading by a renewed motion to dismiss, and the parties have since devoted their attention--and a substantial amount of time--to the briefing process.

 Although the parties have thus concentrated on briefing the motion to dismiss, this Court wishes to remain faithful to the command of Rule 23(c)(1) as construed in Koch and other cases. This opinion therefore addresses the question whether this action "is to be maintained" as a class action (that, rather than the term "certification," is the actual locution of Rule 23(c)(1)) before it turns to City's Rule 12(b)(6) motion.

 Plaintiffs propose to represent a class comprising (Complaint P4):

the thousands of individuals, the exact number of which can be determined from the records of Defendant, who have received or may receive during the course of this litigation before final determination from the City of Chicago, one or more of the following styled notices: Parking Violation Notices, Notice of Determination, and Notice of Final Determination.

 Complaint P6 sweepingly asserts that the proposed class is viable under each of the subdivisions of Rule 23(b).

 It is familiar territory that one or more members of a putative class may sue as representative parties on behalf of the entire class only if (Rule 23(a)):

(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.

 Those prerequisites are not seriously in question here: Surely the proposed class is sufficiently numerous (it would consist of "thousands of individuals"); constitutionality of the Ordinance is an issue of law common to all members of the proposed class; named plaintiffs Van Harken, French and Bennett assert claims that are typical of those of the class; and there is no indication that those named plaintiffs (and, as the case law gloss on the Rule also makes relevant, their counsel) would not adequately represent the class. Moreover, this is a classic candidate for a Rule 23(b)(2) class action, for:

the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.

 City's only argument as to the proposed class is that it should not include persons who have paid rather than contested their parking tickets (City Mem. 8-9). City frames its argument in terms of standing: It contends that persons who paid their tickets did not give City the opportunity to provide due process, and thus do not have standing to challenge the Ordinance.

 That argument is persuasive as to those persons who paid their tickets without availing themselves of an in-person or by-mail hearing. They cannot be heard to complain, because they have waived their opportunity to utilize the review procedures that they would now challenge. *fn5"

 Plaintiffs counter that the present situation is instead analogous to Atchison, T. & S.F. Ry. v. O'Connor, 223 U.S. 280, 286, 56 L. Ed. 436, 32 S. Ct. 216 (1912), where Justice Holmes set out an exception when:

the citizen is put at a serious disadvantage in the assertion of his legal, in this case of his constitutional, rights,...justice may require that he should be at liberty to avoid those disadvantages by paying promptly and bringing suit on his side.

 But plaintiffs omit the portion of that same opinion that specifies that the stated exception applies when "the party indicates by protest that he is yielding to what he cannot prevent..." (id.). What was contemplated by Atchison is a case in which a person pays under protest and promptly brings suit challenging the state action. Nothing of the sort is alleged here, so that the ticketed persons to whose inclusion City objects do not meet the terms of the Atchison exception.

 Consequently, this Court certifies a class under Rule 23(b)(2) consisting of those persons:

1. who have received from the City of Chicago a Parking Violation Notice, a Notice of Determination or a ...

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