770 F.2d 699 (7th Cir. 1985), 84-3113, Frier v. City of Vandalia, Ill.

Docket Nº:84-3113.
Citation:770 F.2d 699
Party Name:Charles FRIER, Jr., Plaintiff-Appellant, v. CITY OF VANDALIA, ILLINOIS, Defendant-Appellee.
Case Date:August 23, 1985
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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770 F.2d 699 (7th Cir. 1985)

Charles FRIER, Jr., Plaintiff-Appellant,



No. 84-3113.

United States Court of Appeals, Seventh Circuit

August 23, 1985

Argued June 7, 1985.

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Bruce Goldstein, Edwardsville, Ill., for plaintiff-appellant.

A.J. Bronsky, Brown, James & Rabbitt, Belleville, Ill., for defendant-appellee.

Before FLAUM and EASTERBROOK, Circuit Judges, and SWYGERT, Senior Circuit Judge.

EASTERBROOK, Circuit Judge.

The City of Vandalia is fairly small (the population is less than 2500), and apparently its police have maintained informal ways. When Charles Frier parked one of his cars in a narrow street, which forced others to drive on someone else's lawn to get around Frier's car, the police left two notes at Frier's house asking him to move the car. That did not work, so an officer called a local garage, which towed the car back to the garage. The officer left a note, addressed to "Charlie," telling him where he could find the car. The officer did not issue a citation for illegal parking, however; he later testified that he wanted to make it easier for Frier to retrieve the car.

Frier balked at paying the $10 fee the garage wanted. He also balked at keeping his cars out of the street. The police had garages tow four of them in 1983--a 1963 Ford Falcon, a 1970 Plymouth Duster, a 1971 Opal GT, and a 1971 Dodge van. Instead of paying the garages, Frier filed suits in the courts of Illinois seeking replevin. Each suit named as defendants the City of Vandalia and the garage that had towed the car.

One of the suits (which sought to replevy two cars) was dismissed voluntarily when Frier got his cars back. We do not know whether he paid for the tows and the subsequent daily storage fees or whether the garage thought it cheaper to surrender the cars than to defend the suit. The other two cases were consolidated and litigated. The police testified to the circumstances under which they had called for the tows. The court concluded that the police properly took the cars into the City's possession to remove obstructions to the alley, and it declined to issue the writ of replevin because the City had the right to remove the cars from the street. Frier then retrieved another car; 1 so far as we can tell, a garage still has the 1970 Plymouth Duster.

After losing in state court, Frier turned to federal court. His complaint maintained that the City had not offered him a hearing either before or after it took the cars, and that it is the "official policy" of the City not to do so. The complaint invoked the Due Process Clause of the Fourteenth Amendment and 42 U.S.C. Sec. 1983, and it sought equitable relief in addition to $100,000 in compensatory and $100,000 in punitive damages. The district court, after reviewing the transcript of the replevin action, dismissed the complaint for failure to state a claim on which relief may be granted. (Because the judge considered the transcript he should have treated the motion to dismiss as one for summary judgment. We analyze the decision as if he had done so.) The court found that Frier had

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notice of each tow and knew how to get his cars back. Frier also had a full hearing in the replevin action on the propriety of the tows. Although the judicial hearing came approximately one month after the tows, the court thought the delay permissible.

A month is a long wait for a hearing when the subject is an automobile. The automobile is "property" within the meaning of the Due Process Clause, and the City therefore must furnish appropriate process. Sutton v. City of Milwaukee, 672 F.2d 644 (7th Cir.1982), holds that a hearing is not necessary before the police tow a car but suggests that one must be furnished promptly after the tow. Sutton also suggests, in line with many other cases, that the City must establish the process and tender an opportunity for a hearing; it may not sit back and wait for the aggrieved person to file a suit. Compare Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), with Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), and Williamson County Regional Planning Commission v. Hamilton Bank, --- U.S. ----, 105 S.Ct. 3108, 3122-23 & n. 14, 87 L.Ed.2d 126 (1985).

The City, for its part, maintains that a few isolated tows without hearings are not the "policy" of the City and may not be imputed to it, see City of Oklahoma City v. Tuttle, --- U.S. ----, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985), and that anyway a month's delay in holding a hearing about seized property is permissible. Cf. United States v. $8,850, 461 U.S. 555, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983), which sustains delay in instituting forfeiture proceedings, and Von Neumann v. United States, 729 F.2d 657 (9th Cir.1984), cert. granted, --- U.S. ----, 105 S.Ct. 2137, 85 L.Ed.2d 495 (1985), in which the Court has agreed to review a holding that 36 days is too long for the Customs Service to take in reviewing a petition to remit the forfeiture of an automobile.

A court ought not resolve a constitutional dispute unless that is absolutely necessary. Jean v. Nelson, --- U.S. ----, 105 S.Ct. 2992, 2997-98, 86 L.Ed.2d 664 (1985). Here it is not. Frier had his day in court in the replevin action. The City has argued that this precludes further suits. (The City raised this argument in the motion to dismiss, which is irregular but not fatally so. See Fed.R.Civ.P. 8(c); Lambert v. Conrad, 536 F.2d 1183 (7th Cir.1976).) The district court bypassed this argument because, it believed, Frier could not have asserted his constitutional arguments in a replevin action. This is only partially correct.

Frier could not have obtained punitive damages or declaratory relief in a suit limited to replevin. But he was free to join one count seeking such relief with another seeking replevin. See Welch v. Brunswick Corp., 10 Ill.App.3d 693, 294 N.E.2d 729 (1st Dist.1973), rev'd in part on other grounds, 57 Ill.2d 461, 315 N.E.2d 1 (1974); Hanaman v. Davis, 20 Ill.App.2d 111, 155 N.E.2d 344 (2d Dist.1959), both of which allow one count seeking replevin to be joined with another count seeking different relief. As we show below, the law of Illinois, which under 28 U.S.C. Sec. 1738 governs the preclusive effect to be given to the judgment in the replevin actions, see Marrese v. American Academy of Orthopaedic Surgeons, --- U.S. ----, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985), would bar this suit. The City therefore is entitled to prevail on the ground of claim preclusion, although the district court did not decide the case on that ground. See Massachusetts Mutual Life Insurance Co. v. Ludwig, 426 U.S. 479, 96 S.Ct. 2158, 48 L.Ed.2d 784 (1976).

Illinois recognizes the principles of claim preclusion (also called res judicata or estoppel by judgment). Jones v. City of Alton, 757 F.2d 878, 884-85 (7th Cir.1985) (summarizing the law of preclusion in Illinois); Hagee v. City of Evanston, 729 F.2d 510, 513-14 (7th Cir.1984) (reconciling conflicting strands of Illinois law). One suit precludes a second "where the parties and the cause of action are identical." Redfern v. Sullivan, 111 Ill.App.3d 372, 376, 67 Ill.Dec. 166, 444 N.E.2d 205 (4th Dist.1982).

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"Causes of action are identical where the evidence necessary to sustain a second verdict would sustain the first, i.e., where the causes of action are based upon a common core of operative facts." Ibid. See also City of Hickory Hills v. Village of Bridgeview, 67 Ill.2d 399, 10 Ill.Dec. 539, 367 N.E.2d 1305 (1977); Morris v. Union Oil Co., 96 Ill.App.3d 148, 51 Ill.Dec. 770, 421 N.E.2d 278 (5th Dist.1981). Two suits may entail the same "cause of action" even though they present different legal theories, and the first suit "operates as an absolute bar to a subsequent action ... 'not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.' " People v. Bone, 82 Ill.2d 282, 287, 45 Ill.Dec. 93, 412 N.E.2d 444 (1980), cert. denied, 454 U.S. 839, 102 S.Ct. 145, 70 L.Ed.2d 120 (1981), quoting Cromwell v. County of Sac, 94 (4 Otto.) U.S. 351, 352, 24 L.Ed. 195 (1877). See also Migra v. Warren City School District Board of Education, 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984). More, as we pointed out in Hagee, 729 F.2d at 513, some cases in Illinois recognize preclusion when both suits arise out of the same transaction. This ground of preclusion is potentially broader than the "same evidence" ground.

The City was a defendant in each replevin action. Frier could have urged constitutional grounds as reasons for replevin. 2 He also could have joined a constitutional claim seeking punitive damages and declaratory relief to his demand for replevin, and therefore he had a full and fair opportunity to litigate (unlike Jones v. City of Alton, where procedural obstacles impeded litigation of the federal claim). The actions also involve both the same "common core of operative facts" and the same transactions. Frier argues that the City towed his cars wrongfully. Each complaint seeking replevin asserted that Frier owned each car and that it had not been "seized under lawful process"--in other words, that there had been no citation and no hearing at which anyone had found that the cars were illegally parked. The replevin statute requires a plaintiff to show that the property was taken without "lawful process." Ill.Rev.Stat., ch. 110, Sec. 19-104. "Process," even in its technical sense, initiates or follows a hearing. Had there been process and a hearing at which a magistrate found the cars to have been illegally parked, Frier would have had no claim for replevin no matter how strongly he contested...

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