was unable to pay the $ 500 fine pursuant to the statute, for "many days." (Complaint at Count II, P 22.)
I. Defendant's Motion to Dismiss
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a motion to dismiss for failure to state a claim upon which relief can be granted tests the legal sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99, (1957); Chicago Dist. of Carpenters Pension Fund v. G & A Installations, Inc., No. 95 C 6524, 1996 WL 66098, at *1 (N.D. Ill. Feb. 8, 1996). The Court must determine whether the plaintiffs would be entitled to relief under any set of facts that could be established in support of their claim. Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984). In deciding a Rule 12(b)(6) motion, the court accepts as true all well-pled factual allegations in the complaint, and draws all reasonable inferences therefrom in the plaintiffs' favor. Lashbrook v. Oerkfitz, 65 F.3d 1339, 1343 (7th Cir. 1995); Conley, 355 U.S. at 45-46. The court will dismiss the complaint only when it appears beyond doubt that the plaintiffs have alleged no facts which, if proved, would entitle them to relief. Id.; Chaney v. Suburban Bus Div. of Regional Transp. Auth., 52 F.3d 623, 627 (7th Cir. 1995).
A. Count I: Ms. Towers' Common Law Writ of Certiorari
Ms. Towers seeks a common law writ of certiorari for review of the final order of the administrative hearing held on February 22, 1996.
Under Illinois law, state courts may issue common law writs of certiorari to an inferior administrative tribunal, if that tribunal has exceeded its jurisdiction, or proceeded illegally, and no direct appeal or review of its proceedings is available. Goodfriend v. Board of Appeals of Cook County, 18 Ill. App. 3d 412, 305 N.E.2d 404, 409 (Ill. App. Ct. 1973); see Holstein v. City of Chicago, 29 F.3d 1145, 1148 (7th Cir. 1994)(recognizing defendant's right to seek review of municipality's administrative decision by state circuit court under writ of certiorari, citing Graff v. City of Chicago, 9 F.3d 1309, 1325 (7th Cir. 1993), cert. denied, 511 U.S. 1085, 128 L. Ed. 2d 464, 114 S. Ct. 1837 (1994)).
The reviewing court cannot examine extrinsic evidence absent statutory authorization. Goodfriend, 305 N.E.2d at 410. Nor can it weigh evidence or substitute its judgment for the discretion and judgment of the administrative agency. Quinlan and Tyson, Inc. v. City of Evanston, 25 Ill. App. 3d 879, 324 N.E.2d 65, 74 (Ill. App. Ct. 1975). A reviewing court can, however, examine all questions of fact and law contained in the record, including a de novo review of any constitutional issues. Holstein, 29 F.3d at 1148 (citing Howard v. Lawton, 22 Ill. 2d 331, 175 N.E.2d 556 (Ill. 1961)). Under Illinois law, a plaintiff seeking administrative review on constitutional grounds must raise those issues at the "earliest opportunity." Head-On Collision Line, Inc. v. Kirk, 36 Ill. App. 3d 263, 343 N.E.2d 534, 538 (Ill. App. Ct. 1976). Generally, a reviewing court should not interfere with an administrative body's discretionary authority, unless exercise of it is arbitrary and capricious, or such action is against the manifest weight of the evidence. Hanrahan v. Williams, 174 Ill. 2d 268, 673 N.E.2d 251, 254, 220 Ill. Dec. 339 (Ill. 1996), petition for cert. filed, 65 U.S.L.W. 3799 (U.S. Mar. 3, 1997)(No. 96-1860).
The gravamen of Ms. Towers' claim is that she was denied a preliminary hearing and the opportunity to plead her innocence at the final hearing. Ms. Towers does not allege that the legal standard was misapplied to the facts of her case, nor that the administrative tribunal acted capriciously, arbitrarily or illegally. As addressed below, the Court finds that the City's procedures, regarding Plaintiffs' § 1983 claims, did not (as applied), and do not (facially), violate the Due Process Clause of the Fourteenth Amendment. Accordingly, Ms. Towers' claim for Common Law Writ of Certiorari in Count I is dismissed.
B. Counts II through IX, XI and XIII: § 1983 Claims
Section 1983 provides a cause of action for persons deprived of constitutionally protected rights. Specifically, § 1983 imposes liability on those persons who, acting under color of state authority, deprive another of a right secured by the Fourteenth Amendment. Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). Congress passed § 1983 "'for the express purpose of 'enforcing the Provisions of the Fourteenth Amendment."" Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 934, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982) (quoting Lynch v. Household Finance Corp., 405 U.S. 538, 545, 31 L. Ed. 2d 424, 92 S. Ct. 1113 (1972) (quoting Cong. Globe, 42 Cong., 1st Sess., App. 69 (1871))).
To state a claim under § 1983, a plaintiff must allege a violation of a federal right. Wright v. Roanoke Redevelopment and Hous. Auth., 479 U.S. 418, 431-32, 93 L. Ed. 2d 781, 107 S. Ct. 766 (1987); Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 19, 69 L. Ed. 2d 435, 101 S. Ct. 2615 (1981). Municipalities are liable under § 1983 for actions or policies which are found to be either unconstitutional or illegal. Monell v. Department of Soc. Servs., 436 U.S. 658, 660, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). However, a municipality's liability is limited to those acts which it has "officially sanctioned or ordered." Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 89 L. Ed. 2d 452, 106 S. Ct. 1292 (1986).
In the Complaint, Plaintiffs allege that the City deprived them of their federally protected constitutional rights by enforcing various vehicle seizure ordinances. Counts II, III, VI, VII, and XI assert due process violations under the Fourteenth Amendment; Counts IV, V, and XIII assert violations of the Excessive Fines Clause of the Eighth Amendment, made applicable to the states by the Fourteenth Amendment; Counts VIII and IX assert unreasonable seizures under the Fourth Amendment, made applicable to the states by the Fourteenth Amendment; and Count XIV asserts a class action claim for Counts II-VI, XI and XIII.
For the reasons set forth below, all of Plaintiffs' claims are dismissed for failure to state a claim on which relief can be granted.
1. Counts II, III, VI, VII and XI: Fourteenth Amendment Due Process Claims
Plaintiffs allege that the City's ordinances, as "written and enforced," violate the Due Process Clause of the Fourteenth Amendment, because none provide for a prompt post-deprivation hearing, and because they preclude plaintiffs from asserting an innocent-owner defense during administrative hearings. Because these Counts contain both procedural and substantive due process claims, the Court will address each in turn.
a. Procedural Due Process Analysis
Procedural due process prohibits the government from taking some action, which directly impairs a person's property interests, before a hearing is held during which the affected person may be heard. Mathews v. Eldridge, 424 U.S. 319, 332, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976). The focus of this analysis is, therefore, on the hearing process, and not on the fairness of the rule. Because due process is a flexible concept, its procedural protections vary depending on the particular right being deprived. Morrissey v. Brewer, 408 U.S. 471, 481, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972).
To determine whether a challenged process adequately protects a federal right, the court must weigh three factors initially laid out in Mathews : (1) the type and importance of the private interest affected by the government action, including the duration and permanence of deprivation; (2) the risk of erroneously depriving such interest under the challenged procedures, and the "probable value . . . of additional or substitute procedural safeguards; and (3) the governmental function involved and state interests served by such procedures, as well as the administrative and fiscal burdens, if any, that would result from the substitute procedures sought. Miller v. City of Chicago, 774 F.2d 188, 192 (7th Cir. 1985), cert. denied, 476 U.S. 1105, 90 L. Ed. 2d 358, 106 S. Ct. 1949 (1986)(citing Mathews, 424 U.S. at 335; Logan v. Zimmerman Brush Co., 455 U.S. 422, 434, 71 L. Ed. 2d 265, 102 S. Ct. 1148 (1982)).
For the first Mathews factor, Plaintiffs have a protected property interest in the use of their automobiles under § 1983. Sutton v. City of Milwaukee, 672 F.2d 644, 645-46 (7th Cir. 1982). Because this property interest includes the use of the automobiles, and because "automobiles occupy a central place in the lives of most Americans, providing access to jobs, schools, and recreation as well as to the daily necessities of life," Plaintiffs have a substantial interest in a prompt hearing on whether seizures of the vehicles were conducted with probable cause. Coleman v. Watt, 40 F.3d 255, 261 (8th Cir. 1994).
Under the second Mathews factor, the risk of wrongful deprivation, due to procedural faults, is minimal here. Plaintiffs' constitutional right to procedural due process is protected by the procedures employed by the City and the review procedures provided under Illinois and local laws. Under the challenged ordinances, an individual cited for a violation has notice of, and a right to, a preliminary post-deprivation hearing. (See Chicago Municipal Code §§ 7-24-225(c), 8-20-015(c) and 11-4-1115(c)(3), supra n.1.) Additionally, a person has notice of, and a right to, a final hearing. (Complaint at Count II, P 12.) These post-deprivation hearings are adequate to remedy the wrongful deprivations of vehicles. See Holstein, 29 F.3d at 1148 (citing Kauth v. Hartford Ins. Co. of Ill., 852 F.2d 951, 955-56 (7th Cir. 1988)).
Furthermore, if the vehicle owner is unhappy with the administrative decision, he or she may petition the Illinois circuit courts for a common law writ of certiorari, to review the findings of a municipality's administrative body. Graff, 9 F.3d at 1325. Finally, if the owner is able to prove that such an administrative hearing is illusory or futile, he or she can bring a state court action for replevin.
Holstein, 29 F.3d at 1148 (citation omitted).
Plaintiffs argue that their right to a preliminary hearing is illusory because the City has no method of notifying those owners who are not in possession of their cars at the time of seizure. (Plaintiffs' Response, at 23.) The City, however, is not obligated to locate and notify every registered owner. Rather, it must use procedures "reasonably calculated" to notify the owner. Robinson v. Hanrahan, 409 U.S. 38, 40, 34 L. Ed. 2d 47, 93 S. Ct. 30 (1972). Each of the challenged ordinances requires the ticketing police officer to give notice of the owner's rights. This notice can be given to the person identifying himself as the owner, or the person in control of the vehicle, at the time of the alleged violation and seizure. The Court finds that this practice is reasonably calculated to notify owners of their rights.
Contrastingly, in Coleman, 40 F.3d at 261, the Eighth Circuit pronounced that a seven day delay in notifying a registered owner about the seizure of his car was excessive and constituted a procedural due process violation. The crux of the Eighth Circuit's analysis was that, even though "the risk of erroneous deprivation is neither increased nor decreased by the timing of the postdeprivation hearing . . . . a more expeditious hearing would significantly reduce the harm suffered by owners wrongly deprived of the use of their vehicles." Coleman, 40 F.3d at 261.
The parties dispute whether Plaintiffs truly had access to a preliminary, post-deprivation hearing. Plaintiffs cite several cases to demonstrate that the City's final hearing, thirty days after the seizure occurred, is too far delayed to provide due process.
Plaintiffs argue that, because they did not receive notice of their right to a preliminary hearing, the first and only post-deprivation hearing to which they are entitled under the ordinances becomes the final hearing before the administrative hearing officer. Plaintiffs further argue that, because these hearings occur thirty days after the City impounds a vehicle, an innocent owner is wrongly denied use of his vehicle for a prolonged period.
The City, on the other hand, contends that, because the preliminary hearing is available within twenty-four hours of the seizure, it, and not the final hearing, is the true measure of the delay in receiving a hearing. The City argues that, because these hearings occur within twenty-four hours from the time of impoundment, there is no constitutional violation. The City's policy under the ordinances is similar to that in Breath v. Cronvich, 729 F.2d 1006 (5th Cir. 1984), cert. denied, 469 U.S. 934, 83 L. Ed. 2d 268, 105 S. Ct. 332 (1985). In that case, the Fifth Circuit upheld the constitutionality of an appearance bond procedure, coupled with a hearing on the underlying traffic violations within a reasonable time. 729 F.2d at 1011. Similarly, in this case, in addition to the preliminary hearing within twenty-four hours, the City permits owners to pay a $ 500 bond to retrieve their vehicles for normal use until the final hearing before an administrative hearing officer.
Plaintiffs cite to no authority holding that this practice lacks adequate due process protections. Cf. Breath, 729 F.2d at 1006; Goichman v. Rheuban Motors, Inc., 682 F.2d 1320 (9th Cir. 1982)(holding due process does not require city to release cars to owners under bond pending hearing on merits of traffic violation). Clearly, these provisions, and the state and local remedies, provide adequate procedural due process protections.
Finally, as to the last prong of the Mathews analysis, Plaintiffs offer no substitute procedures other than a decree enjoining the City from impounding vehicles of allegedly innocent owners. While the Court is sympathetic to the plight of truly innocent owners faced with such a burden, it cannot overlook the governmental functions involved in, and the state interests served by, the enforcement of Chicago Municipal Code §§ 7-24-255 and 8-20-015. The City has a substantial interest in removing from the streets automobiles which are being used to transport illegal weapons or drugs. See, e.g., Miller, 774 F.2d at 193 (holding district court erred in its Mathews analysis by according no weight to defendant's interest in removing vehicles from the streets).
After balancing the three Mathews factors, it is evident that the City has not denied Plaintiffs due process. Therefore, the City's post-deprivation procedures under the challenged ordinances, coupled with Plaintiffs' rights to petition the state circuit courts for common law writs of certiorari, and to pursue actions in replevin, adequately protect Plaintiffs' Fourteenth Amendment Procedural Due Process rights.
i. Mr. Amos' Claims
Mr. Amos did not plead that he had inadequate notice at any time before his preliminary or final hearings. Nor does he plead that he was denied a final hearing. Instead, he states that he was given notice of his right to a preliminary hearing, and that he "has not yet received notice of his final hearing." (Complaint, at Count X, PP 19-20.) Simply because he has not "yet" received his notice, does not mean that a final hearing was held without notice thereof. Alternatively, Mr. Amos may have received notice of a date to appear to contest his citation in traffic court when he initially received that citation from the police officers on October 29, 1996. In that event, Mr. Amos cannot assert that he was never notified, and therefore, denied due process. As such, Mr. Amos fails to allege that he was denied procedural due process by the City.
ii. Ms. Towers' Claims
At some point after the seizure of her automobile, Ms. Towers became aware of the fact that her car had been impounded. Ms. Towers does not allege that the City did not notify Mr. Chambers, the driver of the car at the time of seizure (as it is required to do under § 7-24-225(c)). Rather, she alleges that, because the City did not inform her directly of her right to a preliminary hearing, she was unable to request a preliminary hearing, and was, therefore, denied due process.
Although short of Ms. Towers' standard for notice, the City is only required to give notice "reasonably calculated" to apprise an individual of his or her rights. Robinson, 409 U.S. at 40. The City's ordinances comport with this standard by requiring its police officers, at the time of a violation, to provide notice to the person who is in control of the vehicle. The City is not required to ensure that every registered owner is personally notified of his or her right to a proceeding.
As illustrated above, the City provided Ms. Towers with the requisite procedural due process protections under the Constitution. For those reasons, Ms. Towers fails to state a claim upon which relief can be granted.
iii. Mr. Sturdivant's Claims
Because Mr. Sturdivant's claims for procedural due process are the same as those asserted by Ms. Towers, he too has failed to state a claim upon which relief can be granted.
b. Substantive Due Process Analysis
Substantive due process guarantees that the essential purpose of a law or governmental action is compatible with the Constitution. Therefore, the fairness of the rule at hand is scrutinized, not the fairness of the decision-making process through which it is applied.
Plaintiffs also allege that the City's ordinances permit fines, constituting a criminal penalty of $ 500 (plus the towing and storage fees), while simultaneously denying an innocent-owner defense to those individuals appearing to contest the fines. The City contends that the ordinances are not criminal in nature and that, as a civil penalty, the fines are constitutional. As developed below, the City's ordinances are analogous to civil in rem forfeiture actions, and do not levy criminal fines. As such, the Court finds that the City's ordinances prescribe constitutionally permissible civil fines.
The City's fines are analogous to civil in rem forfeitures. In Bennis v. Michigan, 516 U.S. 442, 134 L. Ed. 2d 68, 116 S. Ct. 994 (1996), the Supreme Court upheld the constitutionality of a Michigan in rem forfeiture statute, as it applied to innocent owners of seized property.
In Bennis, the plaintiff contended, inter alia, that she was denied her property interest without the due process protections of the Fourteenth Amendment, because she was denied notice or an opportunity to contest the forfeiture. Id. at 997. The plaintiff claimed that she was entitled to assert that she was an innocent owner, and that she had entrusted the car to her husband, who, unbeknownst to her, used it to violate Michigan's indecency laws (prostitution). Id.
The Supreme Court reviewed a "long, unbroken line" of cases upholding in rem forfeiture actions against innocent owners as constitutional. The Supreme Court drew a distinction between two specific situations: (1) where a vehicle is used by another without the owner's consent; and (2) where a vehicle is used by another with the owner's consent, but, for a purpose to which the owner did not consent. Bennis, 116 S. Ct. at 998-99 n.5. Because the plaintiff in Bennis fell into this latter group, the Supreme Court held that her interests were not protected by the Due Process Clause of the Fourteenth Amendment against an in rem forfeiture action. Id. at 999. Excerpts from two of the cited cases are particularly illustrative of this distinction:
Cases often arise where the property of the owner is forfeited on account of the fraud, neglect, or misconduct of those intrusted with its possession, care and custody, even when the owner is otherwise without fault . . . and it has always been held . . . that the acts of [the possessors] bind the interest of the owner . . . whether he be innocent or guilty.
Id. at 998 (quoting Dobbins's Distillery v. United States, 96 U.S. 395, 401, 24 L. Ed. 637 (1878)).
It is not unknown or indeed uncommon for the law to visit upon the owner of property the unpleasant consequences of the unauthorized action of one to whom he has entrusted it. . . . [Many areas of law] suggest that certain uses of property may be regarded as so undesirable that the owner surrenders his control at his peril. . . .
Id. (Quoting Van Oster v. Kansas, 272 U.S. 465, 467-68, 71 L. Ed. 354, 47 S. Ct. 133 (1926)).
The plaintiff in Bennis further argued that, notwithstanding the precedent of the in rem forfeiture cases, the Supreme Court should have required some level of culpability before ordering the forfeiture. 116 S. Ct. at 1000, 1996 U.S. LEXIS 1565, *53. In support of her argument, she cited Austin v. United States, 509 U.S. 602, 125 L. Ed. 2d 488, 113 S. Ct. 2801 (1992).
She argued that, because the excessive fines clause was extended to protect the property interests of a convicted criminal, it is unreasonable to omit a requirement for some culpability in civil forfeiture actions against innocent owners. Bennis, 116 S. Ct. at 1000. The Supreme Court rejected her argument because Austin did not concern an innocent owner defense, "other than to point out that if a forfeiture statute allows such a defense, the defense itself is 'punitive' in motive." Id.
In the case at bar, Plaintiffs raise the same arguments as did the plaintiff in Bennis. Because the circumstances in that case are analogous to this matter, the Court finds Bennis controlling here, and rejects Plaintiffs' arguments.
When the dust clears, Plaintiffs are left with a $ 500 fine (read "forfeiture") on their property because they, wrongfully or not, authorized others to use their automobiles. Under the City's ordinances, if they are unable to pay this fine, the automobile is sold by the City to pay the fine, and the remainder is returned to the registered owner.
Unlike Bennis, however, the City's procedures limit the forfeiture to $ 500 in every case, and do not require forfeiture of the entire automobile, nor a percentage thereof.
On a separate, but related argument, Plaintiffs allege that the City's ordinances are criminal, and therefore are subject to criminal due process protections. Contrary to Plaintiffs' assertions, however, the City's ordinances and fines are not criminal in nature. In United States v. Ward, 448 U.S. 242, 248, 65 L. Ed. 2d 742, 100 S. Ct. 2636 (1980), the Supreme Court defined a two step approach to determining whether a penalty is civil or criminal. The first step requires the court to determine whether the legislature expressed a civil or criminal purpose behind the statute. Id. at 249. If the statute was intended to be civil in nature, the second step is to determine "whether the statutory scheme [is] so punitive either in purpose or effect as to negate that intention." Id. To determine whether the purpose or effect of a statute is punitive, courts are guided by a seven-factor analysis established in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 9 L. Ed. 2d 644, 83 S. Ct. 554 (1963); Van Harken v. City of Chicago, 906 F. Supp. 1182, 1190-92 (N.D. Ill. 1995), aff'd as modified, 103 F.3d 1346 (7th Cir.), cert. denied, 117 S. Ct. 1846 (1997)(holding fines for parking violations are not criminal in nature under the factors supplied by Mendoza-Martinez).
These factors are:
 Whether the sanction involves an affirmative disability or restraint,  whether it has historically been regarded as a punishment,  whether it comes into play only on a finding of scienter,  whether its operation will promote the traditional aims of punishment--retribution and deterrence,  whether the behavior to which it applies is already a crime,  whether an alternative purpose to which it may rationally be connected is assignable for it, and  whether it appears excessive in relation to the alternative purpose assigned. . . .