Sutton v. City of Milwaukee

• Citation: 672 F.2d 644
• Decision Date: 18 March 1982
• Docket Number: No. 81-2518,81-2518
• Parties: James SUTTON, Jr., et al., Plaintiffs-Appellees, v. CITY OF MILWAUKEE, et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 644

672 F.2d 644

James SUTTON, Jr., et al., Plaintiffs-Appellees, v. CITY OF MILWAUKEE, et al., Defendants-Appellants.

No. 81-2518.

United States Court of Appeals Seventh Circuit.

Argued Feb. 11, 1982.

Decided March 18, 1982.

Thomas E. Hayes, Deputy City Atty., Linda Uliss Burke, Asst. City Atty., Milwaukee, Wis., for appellant.

Lawrence G. Albrecht, Legal Action of Wisconsin, Inc., Milwaukee, Wis., for appellee.

Before CUDAHY, Circuit Judge, FAIRCHILD, Senior Circuit Judge, and POSNER, Circuit Judge.

POSNER, Circuit Judge.

This class action under 42 U.S.C. § 1983 alleges that various Wisconsin statutes and Milwaukee ordinances relating to the towing, storage, and disposal of abandoned cars and illegally parked cars violate the due process and equal protection clauses of the Fourteenth Amendment. The district judge granted broad injunctive relief in favor of the class, 521 F.Supp. 733 (E.D.Wis.1981), and the city and state appeal. Because the appellants are no longer contesting the injunction insofar as it relates to abandoned cars, the only question on appeal is whether the judge should have enjoined the statute and ordinance relating to illegally parked cars. The statute, Wis.Stat § 349.13, authorizes traffic officers to direct the removal (towing) of any illegally parked car, at the owner's expense, to a parking garage or other storage premises. The ordinance, Milwaukee Code of Ordinances § 101-25(1), similarly authorizes traffic officers to remove cars parked in violation of the parking ordinances in the Code, and specifies a $50 charge for removal and storage. Neither the statute nor the ordinance makes any provision for notice or hearing in advance of removal.

The district judge held that, with respect to the towing of illegally parked cars under "emergency" conditions, the Constitution does not entitle the car's owner to be notified that his car is going to be towed or to an opportunity for a hearing before the car is towed. All that he is entitled to is prompt notice and opportunity to be heard after the car has been towed. The parties, at the judge's urging, have worked out a set of post-towing procedures for notice (by mail, within 24 hours of the tow) and hearing (informal, by the prosecution division of the city attorney's office within one business day, with de novo review of the division's determination of probable cause available at the next regular session of the municipal court). The parties have stipulated that these procedures are constitutionally adequate for emergency tows and the judge has approved the stipulation. Hence there is no issue before us regarding the towing of illegally parked cars in emergencies. The parties seem also to have agreed that if we should hold, contrary to the district court, that the Constitution does not require pre-towing notice and opportunity to be heard with regard to illegally parked cars in nonemergency situations, the stipulated post-towing procedures for emergency tows will simply be extended to nonemergency tows.

This narrows the issue to whether it is unconstitutional for the state or city to tow an illegally parked car without first giving the owner notice and opportunity to be heard, unless the illegally parked car is blocking traffic or otherwise creating an emergency. The district judge held that it is unconstitutional, and if we uphold him on this point that disposes of the appeal. But if we reject the district judge's holding we must then decide a second issue: whether it is constitutional to limit towing in nonemergency situations to illegally parked cars whose owners have at least two unpaid traffic or parking tickets-for that is Milwaukee's enforcement policy.

Since a person's car is property, the state may not deprive him of it without due process of law; and the deprivation need not be permanent to be actionable. See, e.g., Lee v. Thornton, 538 F.2d 27, 32-33 (2d Cir. 1976). Thus the precise question we must decide is whether it is a denial of due process to tow a person's illegally parked car without giving him notice and an opportunity to be heard before the car is towed. The question is one of first impression at the federal appellate level. Stypmann v. City & County of San Francisco, 557 F.2d 1338 (9th Cir. 1977), much cited by the appellees, dealt only with post-towing procedures (see id. at 1340, 1342), a matter not before us. Two state appellate courts have passed on the issue and upheld the constitutionality of the practice. See Baker v. City of Iowa City, 260 N.W.2d 427 (Ia.1977); Bane v. City of Boston, 396 N.E.2d 155, 156-57 (Mass.App.1979).

The starting point for our analysis is Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976), where the Supreme Court announced a simple cost-benefit test of general applicability for deciding whether due process requires notice and hearing before government may deprive a person of property. See Mashaw, The Supreme Court's Due Process Calculus for Administrative Adjudication in Mathews v. Eldridge: Three Factors in Search of a Theory of Value, 44 U.Chi.L.Rev. 28, 46-48 (1976). See also Frost v. Weinberger, 515 F.2d 57, 66 (2d Cir. 1975), where Judge Friendly proposed a similar test, anticipating Mathews. The Frost and Mathews tests require comparing the benefit of the procedural safeguard sought, which is a function of the value of the property interest at stake and the probability of erroneous deprivations if the safeguard is not provided, with the cost of the safeguard. The benefit of the safeguard can be thought of as the product of multiplying the value of the property interest by the probability that that value will be destroyed by a government error if the safeguard is not provided. Quantification will rarely be possible but expressing mathematically the relationship between the value of the interest and the probability of its erroneous destruction may assist in thinking about the tests-which, being general, are as applicable to the towing of automobiles as to the termination or reduction of social security benefits as in Mathews and Frost.

On the benefit side of the ledger in this case, the first thing to be noted is that the property interest is a slight one. It is not the car itself but the use of the car for a short period, usually a few hours, that is at stake. At oral argument we were told about a man whose car was towed and then misplaced by the authorities so that it took him two months to get it back. That was a substantial deprivation but it was not the result of failing to provide notice and an opportunity to be heard in advance of being towed, for there is no suggestion that the car was not illegally parked; it was a result of inadequate post-towing procedures, and these inadequacies have been cured by the stipulation.

Second, the additional safeguard of pre-towing notice and opportunity to be heard is not required in this case to prevent frequent errors. The determination that a car is illegally parked is pretty cut and dried. Police officers make mistakes, of course, but in giving out parking tickets not very many-far fewer than in the case of moving violations. Rarely would a car's owner be able to convince an impartial arbiter that his car really was not illegally parked and so should not be towed; few would be the occasions, therefore, when notice and an opportunity to be heard in advance of towing would prevent an unjust deprivation of a property interest. Since the procedural safeguard sought here would avert few errors, and those of small magnitude in terms of the cost to the car's owner, the benefits of the safeguard would be very small.

We turn to the costs of the safeguard. They are not in this case limited, as one might expect, to the expense of notice and hearing. Cf. Frost, supra, 515 F.2d at 67. There is no way that the city or state can notify the owners of illegally parked cars that their cars will be towed and provide them then and there with an opportunity to challenge the lawfulness of the towing. To require notice and hearing in advance is, as the appellees concede, to prevent all towing of illegally parked cars.

The cost of notice and hearing is therefore the cost of abandoning towing as a method of dealing with illegal parking. It is clearly prohibitive, as the district judge recognized, when the illegally parked car is blocking traffic or otherwise causing an emergency, for in that case there is no feasible alternative to towing. When the illegally parked car is not creating an emergency in this sense, the benefits of towing are less. This is by definition: the term "emergency" is a shorthand expression for situations where towing is the only solution to the problem created by an illegally parked car. But we are not prepared to say that the benefits of towing are negligible in the nonemergency...