Rector v. City and County of Denver

Decision Date06 November 2003
Docket NumberNo. 02-1434.,02-1434.
Citation348 F.3d 935
PartiesTerri RECTOR and Damian Spencer, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. CITY AND COUNTY OF DENVER, a municipal corporation, Defendant-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Jesse H. Choper (Robert B. Carey and Leif Garrison of The Carey Law Firm, Colorado Springs, CO, on the briefs), for Plaintiffs-Appellants.

Debra Asimus Overn, Assistant City Attorney (J. Wallace Wortham, Jr., City Attorney; Geoffrey S. Wasson and Christopher M.A. Lujan, Assistant City Attorneys, with her on the brief), City and County of Denver, Denver, CO, for Defendant-Appellee.

Before TACHA, Chief Circuit Judge, McWILLIAMS and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

In this class action lawsuit against the City and County of Denver ("City" or "Denver"), Plaintiffs-Appellants allege that Denver's parking enforcement regime violates their rights to due process. Their primary claim is that the parking tickets erroneously lead ticket recipients to believe that they will be assessed a late fee if they do not pay the ticket within the allotted twenty-day period, even if they challenge the ticket in a timely fashion. According to Plaintiffs, this misinformation deprives recipients of due process because it discourages ticket recipients from contesting their tickets for fear of incurring a late fee. Plaintiffs further raise several related due process and equal protection claims and challenge the district court's class certification order.

The issue of standing looms large in our disposition of this case. As discussed below, we find that the named plaintiffs Terri Rector and Damian Spencer lack standing to represent the absent class members for the most significant claims presented. We have thus remanded these claims for decertification and dismissal. With respect to the claims for which Plaintiffs are representative of the class, we affirm the district court and dismiss these claims as to both the named representatives and the absent class members.

I. Factual Background
A. Denver's Parking Regime

The material facts concerning the procedures used by Denver for enforcing its parking regulations are not in dispute.

In authorizing the collection of parking fines, Denver's Municipal Code states that "[t]he presiding county judge and the county judges who hear traffic cases shall specify by suitable schedules the fines for violations of Article VII [pertaining to parking violations]." Denver, Colo., Municipal Code § 54-795 (hereafter "Municipal Code"). The City issues over 600,000 parking citations each year pursuant to this section of the Municipal Code.

Upon receipt of a ticket, the putative violator has twenty days to pay the ticket. If the fine is paid within twenty days, the matter is concluded. If the recipient wishes to contest the ticket, he is instructed to call the phone number printed on the ticket. Upon calling the listed number, the ticket recipient is advised either to submit specific documentation for an investigation or to appear in person at the office of the parking referee in Denver. Recipients who appear at the parking referee's office are advised of the procedures relevant to the hearing and are then given an opportunity to seek a fine reduction. If the citation cannot be resolved through fine reduction, the matter is set for a hearing before a Denver County Court judge or magistrate. As long as the ticket recipient either pays the fine or takes one of the above steps to challenge the ticket within the twenty days, no late fee is imposed.

If the recipient does not respond to the ticket within twenty days, the City sends out a series of notices to the registered owner of the vehicle. These notices advise that a late fee has been added to the original fine for failure to respond in a timely manner, and instruct the alleged violator to pay the fine. The notices also list a phone number to dispute the citation, and advise that failure to respond may result in seizure of the vehicle. Third and fourth notices sent by the City similarly inform ticket recipients that their cars may be seized for nonpayment of the parking fine and the associated late fee. If the twenty-day period lapses before the recipient has the matter set for a hearing, the magistrate has discretion to impose all or part of the late fee. However, if the recipient succeeds on the merits of his case, no late fee is imposed.

The language printed on the ticket in relevant part reads:1

For information or to dispute this citation contact (303) 296-2595, or send written inquiries to:

Denver Parking Violations Bureau P.O. Box 46500 Denver, CO 80201-6500 SEE REVERSE SIDE FOR IMPORTANT INSTRUCTIONS

The reverse side states:

TO VIOLATOR

Within 20 days you must respond to the charge(s) of violating the revised Municipal Code of the City and County of Denver, Colorado, and/or Airport Rules and Regulations, which violation(s) occurred in the City and County of Denver.

If payment is not received within 20 calendar days, the fine is increased to the following:

                Viol. Code $ Due After 20 Calendar Days
                23                  $50 (No Penalty)
                All Others          Fine Amt. is Doubled
                

FAILURE TO PAY PARKING FINES MAY SUBJECT MOTOR VEHICLE TO SEIZURE

Plaintiffs' principal claim is that because the ticket's statement that the fine will be doubled if it is not paid within twenty days does not contain an exception for cases when the ticket is challenged through the appropriate procedures, the City illegitimately pressures recipients to pay the fine rather than assert their right to challenge the substantive violation alleged in the ticket.

B. Named Plaintiffs

There are only two named plaintiffs serving as representatives of the class. The first, Terri Rector, is married to a partner in the law firm representing the plaintiff class. On June 10, 2000, shortly after 5:00 p.m., Mrs. Rector parked her car at a metered spot in downtown Denver. According to her sworn statement, Mrs. Rector did not place any coins in the meter, check to see whether the meter was in force, or determine whether any time remained on the meter. At approximately 6:00 p.m., Mrs. Rector was issued a parking ticket, which she paid on June 12, 2000, two days after issuance. Mrs. Rector neither contested the citation nor called the number printed on the ticket to acquire further information. She does not assert any legal basis for contesting the citation.

The facts surrounding Plaintiff Damian Spencer's ticket are more uncertain. Mr. Spencer, a personal friend of Plaintiffs' counsel, offered two different and contradictory accounts in his sworn affidavit and sworn deposition regarding the circumstances under which he received a parking ticket. Each of these accounts is inconsistent with documentary evidence offered by the City, which shows no record that the City issued a ticket either to Mr. Spencer or to his automobile during the time-frame of this action.2 According to Mr. Spencer's deposition, in March of 2000, he parked his 1991 Saab with the license plate "BLAQICE" at a metered spot near the Colorado Convention Center, where he was going to attend a trade show. Mr. Spencer admits that he did not place enough money in the meter to cover the amount of time that he was parked. Upon exiting the Convention Center, Mr. Spencer saw the ticket on his windshield and placed it in his glove compartment. He did not examine the ticket until about a month later, after the twenty days had expired. Subsequently, Mr. Spencer mailed a personal check for the amount of the ticket and the late fee. He does not have a copy of the cancelled check and has not asked his bank for a copy.

Mr. Spencer's affidavit contains a different account. In this version of the events, Mr. Spencer was parked at 15th Street and Larimer and went shopping at the 16th Street Mall. As with the deposition story, he found the ticket on his windshield but did nothing about it until after the twenty-day period for timely payment had expired, at which time he paid both the fine and the late fee. In this account he paid by means of a cashier's check from the Pueblo Bank and Trust Company.

Mr. Spencer provides no documentation to support either account, and the City questions whether a ticket was actually issued. The City's parking authority maintains a database tracking the issuance of parking tickets. According to evidence submitted by the City, several computerized searches performed by the Program Administrator for the Parking Management Section of the City's Transportation Division failed to produce any record of the ticket allegedly received by Mr. Spencer.3

Because this case is on summary judgment there is no occasion to resolve these conflicting accounts. Wherever the ticketing took place, if it did take place, and however the ticket may have been paid, Mr. Spencer admits that he neither contested the citation nor called the number printed on the ticket to contest the violation. Mr. Spencer does not assert that he has any legal basis for contesting the citation, and provides no evidence that the wording of the ticket bore any causal relationship to his decision to pay, rather than challenge, the ticket.

C. Procedural History

On March 20, 2001, Plaintiffs filed a class action complaint against the City. In their claims brought pursuant to 42 U.S.C. § 1983, Plaintiffs asserted that: (i) their substantive and procedural due process rights are violated because the City established the late fee, fostered a situation in which varying standards are used in imposing the late fee, and established a citation format that misrepresents the putative violator's rights, (ii) their First Amendment rights are infringed because the 100% late fee discourages alleged violators from proceeding to a hearing, (iii) the Equal Protection Clause is violated because incompatible standards are used in...

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