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Redwood v. Lierman

June 7, 2002

ERIK REDWOOD AND JUDE REDWOOD, PLAINTIFFS-APPELLANTS,
v.
JOSEPH LIERMAN; THE VILLAGE OF ST. JOSEPH; B.J. HACKLER; AND JEFFREY VERCLER, DEFENDANTS-APPELLEES.



Appeal from Circuit Court of Champaign County No. 99LM243 Honorable Holly F. Clemons, Judge Presiding.

The opinion of the court was delivered by: Justice Appleton

UNPUBLISHED

Plaintiffs, Erik and Jude Redwood, filed an amended complaint under section 1983 of the Civil Rights Act of 1871 (42 U.S.C. §1983 (1994)), alleging that defendants took a van and its contents without a warrant and without due process of law. Defendants are the Village of St. Joseph, Illinois (Village), as well as the Village mayor, B.J. Hackler, the Village attorney, Joseph Lierman, and a deputy sheriff of Champaign County, Jeffrey Vercler. The trial court dismissed the amended complaint with prejudice pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619 (West 2000)). We affirm in part and reverse in part.

I. BACKGROUND

A motion to dismiss under section 2-615 attacks the legal sufficiency of the complaint, whereas a motion to dismiss under section 2-619 admits the legal sufficiency of the complaint, but raises defects or defenses that negate the cause of action or refute crucial conclusions of law or fact that are unsupported by allegations of specific fact. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 484-86, 639 N.E.2d 1282, 1289-90 (1994); AG Farms, Inc. v. American Premier Underwriters, Inc., 296 Ill. App. 3d 684, 688, 695 N.E.2d 882, 886 (1998). Motions to dismiss under either section admit all well-pleaded facts in the complaint together with all reasonable inferences that can be drawn from those facts in the plaintiff's favor. Lawson v. City of Chicago, 278 Ill. App. 3d 628, 634, 662 N.E.2d 1377, 1382 (1996). Review of the dismissal is de novo. Lawson, 278 Ill. App. 3d at 634, 662 N.E.2d at 1382.

With the foregoing principles in mind, we turn our attention to the well-pleaded facts in the amended complaint. Plaintiffs owned a "business," Quality Contractors, which in turn owned a 1982 Ford Econoline van. Plaintiffs had an absolute right to the immediate possession of the van. On May 13, 1997, the van was parked on a driveway at Jude Redwood's private residence at 505 East Sherman Street in the Village. The van was up on blocks, and its front wheels had been removed, so that the brakes could be repaired.

On October 9, 1990, the board of trustees of the Village adopted an ordinance entitled "Inoperable Motor Vehicles." Village of St. Joseph Amended Ordinance, Title 6, Chapter 5, Inoperable Motor Vehicles (eff. October 9, 1990). The ordinance was in force during the events that plaintiffs allege in their amended complaint. In the ordinance, the mayor and the board declare "Inoperable Motor Vehicles" to be a nuisance in that such vehicles harbor disease and vermin, invite plundering, create a risk of fire, pose a danger to children and others, and inflict a "scenic blight," degrading the environment and diminishing land values. The definition of an "Inoperable Motor Vehicle" includes a vehicle that for 14 days cannot be driven because of the removal of the engine, wheels, or other parts. The definition excludes vehicles that are temporarily inoperable because repairs are under way, provided that the repairs are completed within 14 days.

Under the ordinance, any owner of an "Inoperable Motor Vehicle" and any owner or occupier of land on which such a vehicle sits must dispose of it, or enclose it within a building, within seven days after receiving a written notice from the village clerk to do so. The notice must notify the recipient that he or she may request a hearing on the question of whether the vehicle is an "Inoperable Motor Vehicle" by submitting the request in writing to the board within seven days after the date of the notice. A request for a hearing stays the enforcement of the ordinance, pending the hearing and a decision by the board.

The owner of the vehicle or the owner or occupant of the land may apply for an extension of time by making a written request for a hearing. When receiving an application for an extension of time, the board will grant an extension of not more than 30 days, if the applicant shows good cause for an extension and submits an affidavit that the "Inoperable Motor Vehicle" is being held for sale or expeditious repair. "Expeditious repair" means that (1) the parts for repair have been ordered but are not yet available for installation for reasons beyond the owner's control, (2) the vehicle is scheduled to be repaired within 30 days, or (3) the vehicle is inoperable because of an accident and the owner is pursuing a claim for damages or is considering pursuing one.

Section 6-5-6(A) of the ordinance, entitled "Towing," says that if the recipient fails to comply with the notice, the sheriff shall:

"cause the towing or removal of the Inoperable Motor Vehicle: (1) from private property--seven days or thereafter following said notice to the owner of the vehicle and the owner or occupant of the premises where the vehicle is located, or (2) from public property--seven days or thereafter following notice to the owner of said vehicle." Village of St. Joseph Amended Ordinance, Title 6, Chapter 5, Inoperable Motor Vehicles §6-5-6(A) (eff. October 9, 1990).

If, after a hearing, the board determines that the vehicle is an "Inoperable Motor Vehicle," the board will set a reasonable date by which the vehicle must be disposed of or enclosed. The ordinance states:

"In the event said vehicle is not disposed of or enclosed within a building by the said date set by the Board of Trustees, then the Champaign County Sheriff or deputy sheriff shall cause the towing or removal of the Inoperable Motor Vehicle without further, prior notice thereof." Village of St. Joseph Amended Ordinance, Title 6, Chapter 5, Inoperable Motor Vehicles, §6-5-6(B) (eff. October 9, 1990).

On May 13, 1997, the village clerk served a notice upon Erik Redwood at the offices of Quality Contractors. The notice stated that the van, which was registered in the name of Quality Contractors and was located at 55 East Sherman Street, was an "Inoperable Motor Vehicle" and that he must remove it, dispose of it, or enclose it in a building within seven days. The notice informed Redwood of his right to request a hearing and that if he did not request a hearing, dispose of the van, or enclose it within seven days, the van was "subject to being towed and impounded."

Sometime between May 13 and May 19, 1997, one or both of the plaintiffs served a notarized affidavit upon the Village, requesting an extension of time for making repairs to the van. On May 19, 1997, the village clerk responded with a letter, notifying plaintiffs that "[a] hearing has been scheduled for the three inoperable vehicles notices delivered to you by the deputy sheriff on May 13, 1997." The record does not reference any other inoperable vehicles at 505 East Sherman Street besides the van. The hearing was scheduled for May 27, 1997.

At the hearing, plaintiffs requested an extension of 30 days to finish repairing the van because they were waiting for the delivery of parts that had been ordered. The board granted an extension of seven days, until June 4, 1997. Plaintiffs completed the repairs on June 2, 1997, replaced the front wheels, and removed the van from the blocks. On June 3 and 4, plaintiffs drove the van to work. On June 5, the van was parked at a different spot on Jude Redwood's private residential property at 505 East Sherman Street. Erik Redwood had left his tools and toolboxes inside the van. On that date, Deputy Sheriff Vercler entered Jude Redwood's land, without a warrant and without her consent, and towed the van away under color of the ordinance. Vercler was acting on the advice or orders of Hackler, Lierman, and the Village, or on the advice or orders of some of them. When plaintiffs retrieved the van from the towing company, after paying a $75 towing fee, the tools and toolboxes were gone.

In their amended complaint, which they filed on June 1, 2000, plaintiffs alleged that defendants violated the fourth and fourteenth amendments (U.S. Const., amends. IV, XIV)--and, therefore, section 1983--by entering private property and searching and seizing the van without a warrant and without first giving them notice and an opportunity for a hearing. The complaint purports to sue Hackler and Vercler in their "official and individual capacities." In counts I, II, III, and IV, plaintiffs sued Lierman, Hackler, Vercler, and the Village, respectively, for depriving them of property without the due process of law, in violation of the fourteenth amendment. In counts V, VI, VII, and VIII, plaintiffs sued the same defendants for unreasonably searching and seizing the van, "without their consent and without a warrant," in violation of the fourth amendment. Defendants filed motions to dismiss the amended complaint pursuant to sections 2-615 and 2-619, contending that plaintiffs had failed to plead a violation of either the fourth or fourteenth amendment and also contending that common-law immunities and a statute of limitation barred the claims. In an "Opinion Memorandum and Order" filed on March 22, 2001, the trial court granted the motions, dismissing the amended complaint with prejudice.

The trial court partly disagreed with defendants. It rejected defendants' contention that the two-year statute of limitation barred the claims. See Wilson v. Garcia, 471 U.S. 261, 280, 85 L. Ed. 2d 254, 269, 105 S. Ct. 1938, 1949 (1985); 735 ILCS 5/13-202 (West 2000). The court found that the new claims, in the amended complaint, arose out of the facts that plaintiffs had pleaded in the original complaint. See 735 ILCS 5/2-616(b) (West 2000). The court also rejected defendants' contention that the entry onto Jude Redwood's land and the towing of the van were random, unauthorized acts that could not be attributed to the Village. See Parratt v. Taylor, 451 U.S. 527, 537-44, 68 L. Ed. 2d 420, 430-34, 101 S. Ct. 1908, 1914-17 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986).

The court agreed with defendants, however, as to plaintiffs' failure to state a cause of action for violation of the fourteenth amendment. The court cited a decision of the United States Court of Appeals for the Seventh Circuit, Sutton v. City of Milwaukee, 672 F.2d 644, 648 (7th Cir. 1982), wherein the court held that governmental officials need not give owners notice and an opportunity to be heard prior to towing illegally parked cars. By the trial court's reasoning, if the due process clause did not require the City of Milwaukee to provide owners any notice or an opportunity for a hearing prior to towing illegally parked vehicles, the due process clause did not require the Village to provide those procedures to plaintiffs before entering Jude Redwood's private residential property and towing away what it thought was an inoperable van. Nevertheless, the court noted, plaintiffs received those procedural protections as the ordinance required. By enforcing an ordinance that generously bestowed procedural protections over and above what the due process clause required, the court reasoned that Lierman, Hackler, and Vercler could not have violated the due process clause.

The trial court also agreed that it was unclear, from the case law, whether the fourth amendment forbade what defendants had done. Consequently, the individual defendants had a qualified immunity, an "other affirmative matter" that defeated the claims against them. See 735 ILCS 5/2-619(a)(9) (West 2000). According to the court, because the law shields governmental officials from civil liability unless they violate clearly established constitutional rights and because the constitutional right in this case was not clearly established, the individual defendants were immune from liability under section 1983. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 410, 102 S. Ct. 2727, 2738 (1982); Rakovich v. Wade, 850 F.2d 1180, 1210 (7th Cir. 1988) (where the Seventh Circuit outlines an approach based on Harlan concerning the alleged violation of constitutional standards). Citing Bogan v. Scott-Harris, 523 U.S. 44, 54, 140 L. Ed. 2d 79, 88, 118 S. Ct. 966, 972 (1998), the trial court further held that the Village itself had legislative immunity.

As for deputy sheriff Vercler, the trial court held that plaintiffs had "failed to plead any facts to establish that [he] acted pursuant to an official policy or custom promulgated by the Champaign County Sheriff's office that could be deemed unconstitutional." The trial court held that under South Dakota v. Opperman, 428 U.S. 364, 49 L. Ed. 2d 1000, 96 S. Ct. 3092 (1976), "the authority of the police to remove or seize vehicles for parking ordinance violations when those vehicle impede traffic or threaten public safety and convenience is 'beyond challenge.'" Accordingly, the trial court dismissed the amended complaint with prejudice.

This appeal followed.

II. ANALYSIS

A. Fourth Amendment

The fourteenth amendment makes the fourth amendment applicable to the states. Soldal v. Cook County, 506 U.S. 56, 61, 121 L. Ed. 2d 450, 458, 113 S. Ct. 538, 543 (1992). The fourth amendment states in part that the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const., amend. IV. The framers would have understood "effects" to mean personal property. Oliver v. United States, 466 U.S. 170, 177 n.7, 80 L. Ed. 2d 214, 223 n.7, 104 S. Ct. 1735, 1740 n.7 (1984). Governmental officials "seize" property when ...


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