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Thomas v. City of Peoria


February 2, 2007


The opinion of the court was delivered by: Joe Billy McDade United States District Judge


Before the Court is the City of Peoria's Motion to Dismiss. (Doc. 25) and Sonni Williams' ("Williams") Motion to Dismiss (Doc. 27). Plaintiff has filed two separate Responses to these Motions (Docs. 36 & 37). Also before the Court is the City of Peoria's Motion to Deny Class Certification (Doc. 23) and Williams' Motion to Deny Class Certification (Doc. 29). Plaintiff has also filed two separate responses to these Motions (Doc. 28 & 41). For the following reasons Defendants' Motions to Dismiss are GRANTED IN PART AND DENIED IN PART, and Defendants' Motions to Deny Class Certification are GRANTED.


Plaintiff, Joseph A. Thomas, was operating his vehicle on January 30, 2005 when he was stopped for a traffic violation in the City of Peoria. Plaintiff was arrested on an outstanding arrest warrant for a Joshua A. Thomas. Plaintiff did not have the same name as the name on the arrest warrant, nor did he have the same address as that listed on the warrant. However, he did have the same driver's license number as the number listed on the arrest warrant. Plaintiff was taken to the Peoria County Jail where he paid a $100 bond and was released.

On February 10, 2005, Plaintiff (Joseph Thomas) appeared before Circuit Court Judge Albert Purham. Judge Purham held that the individual appearing before him was not the Joshua Thomas listed in the arrest warrant and ordered that the bond be refunded.

Plaintiff now brings a suit under the Civil Rights Act, 42 U.S.C. § 1983, and Amendment IV and XIV of the United States Constitution. Plaintiff also brings claims based in state law for abuse of process and false arrest. Additionally, Plaintiff seeks relief on behalf of a class of similarly situated individuals.

The focus of Plaintiff's claim, however, is not just upon the false arrest. The focus of Plaintiff's claim is mostly upon the grounds for Joshua Thomas's warrant -- specifically, the fact that Joshua Thomas's arrest warrant was for unpaid parking tickets. Joshua Thomas had nine unpaid parking tickets by February 10, 2004. Defendant Williams, as attorney for the city, filed with the Circuit Court of Peoria County, Illinois, a parking ticket complaint. The city then filed a summons for issuance by the Circuit Clerk of Peoria County. However the City was unable to serve process upon Joshua Thomas. Williams then obtained an alias summons on June 28, 2004, but they were again unable to successfully serve that summons. A second alias summons was issued on August 12, 2004 and again they were unable to serve that summons. Furthermore, a postal inquiry revealed that Joshua Thomas was not residing at the listed address.

On October 8, 2004, Circuit Judge Stephen Kouri issued the arrest warrant for Joshua Thomas. According to Plaintiff's Complaint, Williams supplied the incorrect driver's license number in a supplement to her Affidavit in Support of Issuance of Arrest Warrant. Plaintiff was arrested with a similar name and the same driver's license number as the arrest warrant. He is now bringing a claim not just for the false arrest but also seeks to represent a class of similarly situated persons who have been arrested for parking tickets or who have outstanding arrest warrants for parking tickets.


When considering a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the Court must view the Complaint in the light most favorable to the Plaintiff and the Complaint's well-pleaded factual allegations must be accepted as true. Williams v. Ramos, 71 F.3d 1246, 1250 (7th Cir. 1995). Therefore, a complaint can only be dismissed if a plaintiff cannot prove any set of facts upon which relief can be granted. Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1429-30 (7th Cir. 1996). However, the Court is not bound by a plaintiff's legal conclusions. Baxter by Baxter v. Vigo County School Corp., 26 F.3d 728, 730 (7th Cir. 1994). The province of Rule 12(b)(6) motions is to question the availability of a legal formula justifying relief on the alleged facts, not to test or determine the facts themselves. Maple Lanes, Inc. v. Messer, 196 F.3d 823, 824-25 (7th Cir. 1999).


In order to defeat the Motions to Dismiss, Plaintiff raises several arguments.*fn1 There are two main provinces of Plaintiff's claim. Plaintiff is seeking to represent a class of persons arrested or subject to outstanding arrest warrants without service in City of Peoria noise and parking actions. Thus, the focus of Plaintiff's arguments are on the constitutionality of arrests without service for noise and parking violations. Plaintiff's secondary arguments focus on Plaintiff's mistaken arrest. The Court will address the following arguments raised by the parties: A) Plaintiff's numerous statutory arguments, B) the status of parking violation actions as a quasi-criminal matter, C) Plaintiff's procedural due process arguments, D) the issues of absolute and qualified immunity, and E) the issue of class certification. Plaintiff's claim for false arrest can not be dismissed at this stage and will not be addressed until the Summary Judgment stage of litigation.

A. Plaintiff's Statutory Arguments

Plaintiff presents several arguments that have already been addressed in several of the other 'parking-ticket' cases which have appeared in this District. Previously, the City of Peoria and Plaintiff's Counsel debated over which section of Illinois Law governed parking. Plaintiff's Counsel argued that Illinois Motor Vehicle Code controlled the issue while Defendant's argued that the Illinois Municipal Code applied.*fn2 These arguments were presented before United States District Judge Michael M. Mihm in Rist v. City of Peoria, 05-1013 (C.D.Ill. Order on Motion to Dismiss, September 26, 2005). Judge Mihm held that the Illinois Municipal Code is the proper chapter of Illinois law for courts to reference when determining whether Illinois state law authorizes the arrest of a person who has failed to pay multiple parking tickets. Judge Mihm's reasoning went as follows:

The Illinois Vehicle Code gives local authorities the power to regulate "the standing or parking of vehicles." 625 ILCS 5/11-208. Contrary to Plaintiff's assertion, Section 5/11-207, which prevents local municipalities from enacting or enforcing any regulation in conflict with the provisions in the Illinois Vehicle Code, does not prevent a municipality from enacting a parking ordinance even if those ordinances differ from those listed in the Illinois Vehicle Code. See 625 ILCS 5/11-207; 5/11-208. Plaintiff's argument fails to recognize that Section 207 actually states "no local authority shall enact or enforce any ordinance rule or regulation in conflict with the provisions of this Chapter unless expressly authorized herein." Id. (emphasis added). The very next section of the Chapter expressly authorizes local authorities to enact rules and regulations regarding parking. See 625 ILCS 5/11-208(a). Section 208 states "[t]he provisions of this Code shall not be deemed to prevent local authorities with respect to streets and highways under their jurisdiction and within the reasonable exercise of the police power from . . . regulating the standing or parking of vehicles." 625 ILCS 5/11-208(a)(1). Accordingly, because the Illinois Vehicle Code does not regulate parking but rather gives municipalities the power to enact local ordinances to regulate parking, the Illinois Municipal Code is the proper chapter of this Code for this Court to reference when determining whether Illinois state law authorizes the arrest of a person who has failed to pay multiple parking tickets.

The parties now pick up their arguments from Judge Mihm's holding. Plaintiff argues that Illinois Courts have held that that the Illinois Motor Vehicle code controls over the Illinois Municipal code and cites People ex rel Ryan v. Village of Hanover Park, 724 N.E.2d 132 (Ill.App.1st. 1999). However, People ex rel Ryan does not apply. In that case the Court addressed a quo warrantor claim brought by the attorney general against Illinois municipalities. The municipalities were issuing traffic citations without reporting traffic offenses to the Illinois Secretary of State as required by Illinois Supreme Court Rule 552 and Section 2-604 of the Illinois Vehicle Code. In that case, the Illinois Vehicle Code would obviously control over the Illinois Municipal code because the Vehicle Code specifically stated the reporting requirements. In parking ticket cases, however, the Illinois Vehicle Code specifically states that "[t]he provisions of this Code shall not be deemed to prevent local authorities with respect to streets and highways under their jurisdiction and within the reasonable exercise of the police power from . . . regulating the standing or parking of vehicles." 625 ILCS 5/11-208(a)(1). No such exception existed in the People ex rel Ryan. Accordingly, that case does not apply to this case and this Court agrees with the reasoning presented by Judge Mihm.

Plaintiff further argues that "Section 16-101 [of the Illinois Vehicle Code] requires uniform enforcement and penalty provisions for all violations." 625 ILCS 5/16-101 states that "the provisions for this Chapter shall be applicable to the enforcement of this entire Code, except where another penalty is set forth in a specific Chapter which is applicable to that Chapter or a designated part or Section thereof." Implicit in the power designated to local authorities to regulate parking is the power to enforce and penalize offenders for parking violations. The power to "regulate" has been designated to local authorities. Included in that power is the power to penalize and enforce. Not only does this make sense from the prospective of statutory construction, but also from a policy prospective. When enacting the Illinois Vehicle Code, the legislature certainly did not intend for the penalties, enforcement procedures and fines to be the same for every parking space in every municipality all across the state.

Since the Illinois Municipal Code applies, it is important to note that the Municipal Code authorizes the issuance of a warrant for the arrest of an individual when authorities believe that a city ordinance has been violated. 65 ILCS 5/1-2-9 states as follows:

Except as provided in Section 1-2-9.1 of this Act, in all actions for the violation of any municipal ordinance, the first process shall be a summons or a warrant. A warrant for the arrest of an accused person may issue upon the affidavit of any person that an ordinance has been violated, and that the person making the complaint has reasonable grounds to believe that the party charged is guilty thereof. Every person arrested upon a warrant, without unnecessary delay, shall be taken before the proper officer for trial. Section 1-2-9.1 states:

In all actions for violation of any municipal ordinance where the fine would not be in excess of $750 and no jail term could be imposed, service of summons may be made by the city clerk by certified mail, return receipt requested, whether service is to be within or without the State. 65 ILCS 5/1-2-9.1 Although Section 1-2-9.1 gives the City the option to serve an offender through certified mail instead of issuing a warrant, Section 1-2-9.1 does not require the City to do so. The statute merely says that "service of summons may be made by the city.." Id. Accordingly, arresting an individual for parking violations is authorized under the Illinois Municipal Code. See Rist v. City of Peoria, 2006 WL 452582 (C.D.Ill. 2006).

Plaintiff's last statutory argument relates to applications of the Peoria City ordinances.

The Peoria Local Ordinance states in Section 1.7 that

Upon default in payment of any fine, interest, court costs or installment thereof for more than 30 days, the defendant shall be summoned to appear before the circuit court of the county by personal service or registered mail, return receipt requested, to show cause, if any he has, why he should not be held in contempt of the court for his willful failure or refusal to pay the fine, interest and costs imposed. Personal service of a summons shall be made not less than three days before the date upon which the defendant must appear before the court to show cause. Peoria City Code § 1.7. (See Doc. Exb 10.)

Plaintiff argues that this Section sets forth a strict procedure for collecting "any fine." This procedure provides that a summons be issued when a party has failed to pay a fine. Plaintiff is essentially arguing that the City of Peoria is not following this ordinance when warrants are issued when a party has not been served with a summons. Judge Mihm addressed this argument in the previously noted case Rist v. City of Peoria, 05-1013 (C.D.Ill. Order on Motions for Summary Judgment, February 22, 2006). Therein, Judge Mihm noted that Section 1-7 is a contempt procedure to be used when a person defaults on a fine for more than thirty days. It does not apply when there has not been a finding that the offender failed to pay a parking citation.*fn3

Furthermore, even assuming arguendo that Section 1-7 did apply to parking ticket cases when a party has not been summoned, Section 1-7 still would not apply in this case. In this case, more than one summons was issued but none were successfully served. Section 1-7 is silent on the matter of what happens when the City attempts to serve a summons upon an individual who has not paid their citations, but is unable to do so successfully. Nothing in Section 1-7 would prevent the City from then invoking the power to arrest an individual already in place under the Illinois Municipal Code when they have tried but been unable to successfully serve a defendant.*fn4

B. Parking Violations are a Quasi-Criminal Matter

Plaintiff presents the following argument: The City of Peoria has established that parking violations are civil and not criminal matters. For the City to obtain an arrest warrant against an individual they are constitutionally required to have authorization of custodial detention under the applicable substantive law. In cases involving parking tickets, the city did not have authorization for custodial detention for the offense because arrests for a civil violation are contrary to the Fourth and Fourteenth Amendment requirements of due process.

Plaintiff assertion rests on the proposition that proceedings involving parking violations are purely civil proceedings. Plaintiff cites Toth v. City of Peoria, 574 N.E.2d 1334 (Ill. App. 3d. 1991) in which the City of Peoria tried to avoid the 18-month statute of limitations period allowed for a misdemeanor prosecution under the Code of Criminal Procedure, Ill.Rev.Stat. 1989, ch. 38, par. 3-5. Instead, Peoria sought to have the five-year statute of limitations period for "civil actions not otherwise provided for" applied to parking ticket proceedings. In rejecting the application of the Code of Criminal Procedure, the Court cited City of Crystal Lake v. Sak (Ill. App. 2nd. 1977) which held that the civil standards apply to violations of municipal ordinances not involving an arrest. The Toth court held that "to the extent that the instant case did not involve an arrest, we find that the Sak court's adherence to civil procedure rules. applies to the resolution of the issues here." Toth, 574 N.E.2d at 1336.

When looking solely at this reasoning, the Toth court seems to be saying that the lack of an arrest warrant in parking ticket cases was the key factor in determining the longer statute of limitations. Now, the City of Peoria would like to have their cake and eat it too by having the lengthened statute of limitations and the freedom to arrest individuals who have not paid their fines. However, under subsequent case law, the City of Peoria is entitled to exactly that.

The Toth Court specifically held that that parking ticket proceedings were "quasi criminal," and such proceedings involving violations of municipal ordinances are "hybrids presenting aspects of both civil and criminal nature." Toth, 574 N.E.2d at 1335. Numerous Courts have noted the quasi criminal nature of city, municipal and local ordinances. See, e.g., Mayer v. City of Chicago, 404 U.S. 189, 196 (1971); Petersen v. City of Greenville, 373 U.S. 244; United States v. Skocven, 405 F.3d 537, 550 (7th Cir. 2005). When federal courts in Illinois have faced the question of whether an arrest is lawful for violations of a city municipal ordinance, they have turned to the Illinois Supreme Court for guidance. Mustfov v. Rice, 663 F.Supp. 1255 (N.D.Ill. 1987). In Mustfov, plaintiffs were challenging whether an arrest under a Chicago City Ordinance. The Court noted the "quasi-criminal" nature of ordinance violations. The Court then relied upon the Illinois Supreme Court's ruling in People v. Edge, 94 N.E.2d 359 (Ill. 1950), which held as follows:

"While an action for a violation of a municipal ordinance is both tried and reviewed as a civil proceeding. this does not preclude a violation of a municipal ordinance, subjecting the offender to the penalty of a fine from being a 'criminal offense' within the contemplation of the statue on arrest."

Edge, 94 N.E. 2d at This Court agrees. The City of Peoria may have won the previous ruling that parking violations are to be viewed as a civil proceeding for purposes of the statute of limitation. After all, according to Edge, an action for violation of a municipal ordinance is both tried and reviewed as a civil proceeding. However, this does not preclude parking ordinances which subject the offender to the penalty of a fine from being a 'criminal offense' within the contemplation of the statute on arrest.

Plaintiff cites several cases to support his position that an arrest for a civil violation is contrary to the Fourth Amendment. Allen v. City of Portland, 73 F.3d 232, 234 (9th Cir. 1995), Kennedy v. Los Angeles Police Dept., 901 F.2d 702 (9th Cir. 1990), and Moore v. Marketplace Rest, 754 F.2d 1336 (7th Cir. 1985) all involve clear civil disputes where one party or another was arrested. Because all of these cases involve clear civil disputes (such as leaving a disputed coupon instead of cash payment for a restaurant tab) in which an arrest was made, these cases do not guide the Court on the "quasi-criminal" nature of unpaid parking tickets.

Plaintiff's other case, Doe v. Metropolitan Police Dept., 445 F.3d 460 (D.C. Cir. 2006) provides better guidance. In Doe, the plaintiffs were arrested for underage drinking under a District of Columbia ordinance. The Court specifically noted that the 2001 version of the ordinance made certain offenses criminal misdemeanor matters while other offenses were specifically "a civil matter." In that case the youths were arrested under the "civil" portion of the statute for what the Court described "an unambiguously civil offense." As a result, the Court ruled that the plaintiff's claims for Fourth Amendment violations could proceed. Nothing in the statute, discussed infra, describes parking violations as an unambiguously "civil" matter. Case law involving the statute of limitations does not make the matter unambiguously civil, because that case law described parking ticket proceedings as "quasi-criminal." Instead, under Illinois law the matter is "quasi-criminal" and under the standard set in Doe, Plaintiff's claim would not survive.

C. Plaintiff's Due Process Arguments

Plaintiff states that the Fourteenth Amendment guaranty of procedural due process requires certain protections for criminal defendants. Plaintiff then argues that since the city does not extend those protections to parking ordinance cases, the proceedings are civil and deprivations of liberty based on such proceedings are a deprivation of procedural due process. To support this position Plaintiff cites Bloom v. Illinois, 391 U.S. 194, 208-210 (1968). Bloom dealt with the procedural requirements for the offense of criminal contempt. The Court noted that contempt of Court was a petty offense that did not require a trial by Jury. Nothing in Bloom would suggest that an individual can only be arrested for those criminal violations which would provide a typical criminal the gamut of protections afforded by the constitution. Furthermore, the Court in Bloom still considered contempt hearings a criminal matter rather than a civil matter despite the fact that contempt hearings do not provide all the guarantees of procedural due process. Lastly, the legitimacy of an arrest is not measured by whether the individual arrested will have all the guarantees of procedural due process. See McNair v. Coffee, 279 F.3d 463 (7th Cir. 2002)(holding that officer arresting individuals at gunpoint for unpaid parking tickets was entitled to qualified immunity); Atwater v. City of Lago Vista, 532 U.S. 318 (2000)(holding that arresting motorist for failing to wear her seat belt did not violate motorist's Fourth Amendment rights).

Accordingly, since Plaintiff's due process argument fails, the Court finds that there is no legal formula from which Plaintiff could recover simply for being arrested on a warrant that was issued for unpaid parking tickets. The province of Rule 12(b)(6) motions is to question the availability of a legal formula justifying relief on the alleged facts, not to test or determine the facts themselves. Maple Lanes, 196 F.3d 823, 824-25. As a result, Plaintiff's claim that an arrest warrant for unpaid parking tickets is unconstitutional or against Illinois statutes fails. This leaves open the question of Plaintiff's alleged false arrest.

D. Absolute and Qualified Immunity

1. Absolute Immunity

Defendant Williams argues that she is entitled to absolute immunity for the erroneous information added to the circuit court's order and corresponding warrant. Plaintiff argues that she is entitled to absolute immunity for work that is "intimately associated" with the judicial process and supplying this erroneous information falls under that rubric.

According to Kalina v. Fletcher, 522 U.S. 118 (1997) a prosecutor will be entitled to absolute immunity when performing the traditional functions of an advocate. However, when a prosecutor is performing the function of a complaining witness, the prosecutor can be liable under § 1983. Id. at 131.

Based solely upon Plaintiff's pleading before the Court, the erroneous material was supplied "as a supplement to the affidavit." (Complaint at 4) Thus, it appears that Williams, or an official acting on her behalf, could have presented the erroneous information while performing the function of a complaining witness rather than as an advocate. In which case, Williams would not be entitled to absolute immunity.

2. Qualified Immunity

Defendant argues that Plaintiff has not pled facts which would meet Plaintiff's burden of establishing the existence of an allegedly clearly established constitutional right. Specifically, Defendant argues that there are not any closely analogous cases, decided before the defendants acted or failed to act, which are required to find that a constitutional right is clearly established and avoid qualified immunity. Rakovich v. Wade, 850 F.2d 1180, 1209 (7th Cir. 1988).

Here, it is important to narrow down Plaintiff's remaining claims. Specifically, based upon the discussion supra, Plaintiff does not have a claim that an arrest for failure to pay parking tickets is unconstitutional. However, this does not mean that Plaintiff's claim for false arrest is not valid.

In determining whether the claim for false arrest could be valid, the issue is not whether the police arrested the correct individual. "The Fourth Amendment is not violated by an arrest based upon probable cause, even though the wrong person is arrested." Graham v. Connor, 490 U.S. 386, 398 (1989). An arrest of the wrong person is constitutional if the arresting officers 1) have probable cause to arrest the person sought and 2) reasonably believe that the person arrested is the person sought. Brown v. Patterson, 823 F.2d 167 (7th Cir. 1987); see, also, Tibbs v. City of Chicago, 469 F.3d 661 (7th Cir. 2006); (citing Hill v. California, 401 U.S. 797 (1971)). In this case, the Court has already determined that the City of Peoria had probable cause to arrest the person sought. However without any evidence before the Court it is impossible to determine whether those involved in Plaintiff's arrest reasonably believed that Joseph Thomas was Joshua Thomas. Since it has been clearly established that the Fourth Amendment is violated if the persons involved in the arrest did not reasonably believe that the person arrested was the person sought, Defendants are not entitled to qualified immunity at this stage.

E. Class Certification

Plaintiff wishes to represent a class of 571 members who were arrested without service or have outstanding warrants. However, Plaintiff's only remaining claims are related to the fact that he was allegedly falsely arrested. Based upon the discussion supra, there is no basis in this case for claiming that the City of Peoria can not constitutionally arrest an individual for failing to pay their parking tickets.*fn5 Nowhere in Plaintiff's briefs does Plaintiff purport to represent a class of persons who were falsely arrested. Accordingly, Plaintiff's claims fail in the area of numerosity, common questions of law and fact and typicality.

F. Remaining Issues

Lastly, the Court notes that in previous cases concerning parking tickets, Plaintiff's Counsel has repeatedly reraised the issue of due process in later briefs with the Court. See Rist, 05-1013 (C.D.Ill). This Court has taken the time to address each of Plaintiff's arguments on the issue of due process. In doing so, this Court has found that there is no basis in this case for claiming that issuing an arrest warrant for unpaid parking tickets is unconstitutional or in conflict with local and state ordinances. The only issuing remaining in this case is Joseph Thomas' allegedly false arrest. Reraising the issue or arrests for unpaid parking tickets in this case before this Court will appear duplicitous and vexatious.


IT IS THEREFORE ORDERED that Defendants' Motions to Deny Class Certification (Docs. 23 and 29) be GRANTED and Defendants' Motions to Dismiss (Docs. 25 and 27) be GRANTED IN PART and DENIED IN PART. Plaintiff's claim may proceed on the issue of Plaintiff's allegedly false arrest. This case is referred to United States Magistrate Judge John A. Gorman for all pretrial proceedings.

ENTERED this 2nd day of February, 2007.

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