Horn v. City of Chicago

• Decision Date: 06 October 1988
• Docket Number: Nos. 87-1174,87-1175 and 87-1936,s. 87-1174
• Parties: Richard HORN and all others similarly situated, Plaintiffs-Appellees, v. CITY OF CHICAGO and Datacom Systems Corporation, Defendants-Appellants, and County of Cook, Morgan M. Finley, as Clerk of the Circuit Court of Cook County, and Charles Sawyer, Director of the Department of Revenue of the City of Chicago, Defendants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 700

860 F.2d 700

Richard HORN and all others similarly situated, Plaintiffs-Appellees, v. CITY OF CHICAGO and Datacom Systems Corporation, Defendants-Appellants and County of Cook, Morgan M. Finley, as Clerk of the Circuit Court of Cook County, and Charles Sawyer, Director of the Department of Revenue of the City of Chicago, Defendants.

Nos. 87-1174, 87-1175 and 87-1936.

United States Court of Appeals Seventh Circuit.

Argued Feb. 25, 1988.

Decided Sept. 21, 1988.

As Amended Sept. 22, 1988 and Oct. 6, 1988.

Iris E. Sholder, Asst. State's Atty., Chicago, Ill., for Cook County etc.

Ruth M. Moscovitch, Corp. Counsel, Chicago, Ill., for City of Chicago.

William Lynch Schaller, Frances D. Morrissey and Thomas F. Bridgman, Baker & McKenzie, Chicago, Ill., for defendants-appellants.

Rick Schoenfield, Ettinger, Schoenfield & Katz, Ltd., Chicago, Ill., for plaintiffs-appellees.

Before CUDAHY, FLAUM, and EASTERBROOK, Circuit Judges.

FLAUM, Circuit Judge.

Plaintiffs ¹ are 330,000 motor vehicle owners who paid delinquent parking tickets pursuant to demand notices processed by Datacom for the City of Chicago. The district court held that the demand notices violated plaintiffs' right to due process of law by failing to give sufficient notice that a hearing was available to contest their liability for the amount demanded. The court therefore ordered the City to provide a hearing on the parking violation and fine for any plaintiff who so desired. We hold that as a matter of law the demand notices provided constitutionally sufficient notice, and we therefore reverse the contrary finding of the district court.

I.

When the Chicago Police Department alleges that a vehicle is parked in violation of a city ordinance, it places a citation ("ticket") on the vehicle. The ticket states, "Notice--this is a complaint for a parking violation." As the district court explained:

Upon issuance of the ticket, a court case is initiated in the Circuit Court of Cook County against the owner of the license plate listed on the ticket. See [Chicago Municipal] Code Sec. 27-364(a). A defendant in such a case may plead guilty to the parking ordinance violation and pay the scheduled fine by mail or may appear in court to contest the ticket on the date set forth on the ticket. If the defendant fails to mail in the fine or appear on the court date, the Clerk of the Circuit court sends a "white card" notice of a second court date to the defendant. If the defendant fails to mail in the fine or appear on the second court date, the Clerk of the Court lists the defendant as being delinquent in paying traffic violation fines, but no judgment is entered against such defendants.

Horn v. City of Chicago, No. 85 C 6838, Memorandum Opinion at 3-4 (N.D.Ill. July 25, 1986) . The tickets originally issued to plaintiffs in this case listed fines of $7, $10, or $15. Chicago hired Datacom, a private contractor, to collect these unpaid fines. Datacom subsequently mailed demand notices to plaintiffs. The original and later revised notices varied only slightly. The original notice read:

CITY OF CHICAGO

DEPARTMENT OF REVENUE

You can obtain additional information about this notice ONLY by writing to the address listed above or by calling (312)580-3400.

Our records indicate that the parking tickets listed below have not been paid. IF YOU DO NOT PAY THE TOTAL AMOUNT SHOWN BELOW IMMEDIATELY, THE CITY OF CHICAGO WILL TAKE FURTHER LEGAL ACTION AGAINST YOU. This may include preparing a verified petition in the Circuit Court of Cook County requesting that a DEFAULT JUDGMENT in the amount of $35 plus court costs be entered against you for each unpaid ticket.

You can avoid this action by mailing a check or money order in the total amount shown below. Make your check or money order payable to the Clerk of the Circuit Court. To insure proper payment write the ticket number(s) on the front of your payment and enclose the bottom portion of this notice with your payment. Mail only in the enclosed envelope. No information will be given or payment accepted at Traffic Court. DO NOT MAIL CASH.

TO PREVENT FURTHER ACTION YOU MUST RESPOND WITHIN 15 DAYS.

The original notice demanded $20 in "fines and penalties" for each unpaid ticket regardless of the amount listed on the ticket itself. Revised notices, sent to each alleged parking violator who did not respond to the original notice, demanded $35, and finally $50 for each unpaid ticket. ² The original notices listed a sum labelled "AMOUNT NOW DUE;" the subsequent notices set forth the "TOTAL FINES AND FEES NOW DUE." The defendants collected almost $26,000,000 from May of 1985 to July of 1986 on hundreds of thousands of parking tickets.

Essentially, plaintiffs alleged that the defendants deprived them of due process of law in violation of 42 U.S.C. Sec. 1983 by misrepresenting that plaintiffs owed fines, penalties, and court costs when no judgment had ever been entered against them ³ in the traffic division of the circuit court. ⁴ Plaintiffs sought a preliminary injunction prohibiting the city from sending further notices and collecting any further fines, and ultimately sought an accounting followed by a refund (plus interest) to all who paid pursuant to the demand notices. Defendants moved to dismiss the complaint for failure to state a claim and on the ground that the district court should abstain from exercising jurisdiction under the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). ⁵ Plaintiffs amended their complaint and defendants again moved to dismiss on similar grounds. At the time the district court rendered judgment in this case, the only pending motions were plaintiffs' motion for a preliminary injunction and defendants' motion to dismiss. The district judge nonetheless converted defendants' motion into one for summary judgment, and proceeded to grant summary judgment in favor of the plaintiffs. ⁶

The court found that the demand notices violated plaintiffs' due process rights, ⁷ by "demanding money ... in excess of the amounts stated on the tickets, ⁸ without adequate notice of the hearing to which they were entitled." Horn, No. 85 C 6838, Amended Mem.Op. at 30. A listed telephone number could not substitute for notice of a hearing, the court held, and nothing in the demand notice indicated that the matter was still pending. "The demand notices strongly imply that a default judgment has been entered ... by the traffic court [in the amount listed on the notice] even though the defendants had not amended the complaint nor sought a default judgment of [that] amount...." Id. at 26. The district court declined to refund the money paid, however, and instead ordered the city to provide an individualized hearing to any plaintiff who desired one to determine whether he or she was guilty of the infraction charged. ⁹ It also ordered the city to amend the complaints and notify plaintiffs of such amendments if it wished to seek a fine higher than the one shown on the ticket.

II.

As courts have frequently emphasized, due process is a flexible concept; its protections vary according to the demands of a particular set of circumstances. See Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972); Birdsell v. Board of Fire and Police Comm'rs, 854 F.2d 204, 207-09 (7th Cir.1988). The notice provided to plaintiffs must have been "reasonably calculated, under all the circumstances, to apprise [them] of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). In Memphis Light, Gas and Water Div. v. Craft, 436 U.S. 1, 14 n. 15, 98 S.Ct. 1554, 1563 n. 15, 56 L.Ed.2d 30 (1978), the Supreme Court stressed the flexibility of the notice requirement. Although the court held that the public utility had violated its customers' due process rights by not adequately notifying them of the procedures that were available to contest termination of service, the Court cautioned that "[i]n a different context a person threatened with the deprivation of a protected interest need not be told 'how to complain.' " Id. at 14 n. 15, 98 S.Ct. at 1563 n. 15. The "final notice" at issue in Memphis Light "simply stated that payment was overdue and that service would be disconnected if payment was not made by a certain date." Id. at 13, 98 S.Ct. at 1562. In the circumstances of that case, the notice was insufficient because "[l]ay customers of electric service, the uninterrupted continuity of which is essential to health and safety, should be informed clearly of the availability of an opportunity to present their complaint." Id. at 14 n. 15, 98 S.Ct. at 1563 n. 15.

Plaintiffs in this case were not involuntarily deprived of an essential service. Rather, they chose to pay the amounts demanded as fines for illegal conduct. All had received the parking ticket-complaint setting one court date, and a "white card" giving notice of a second court date. The first demand notice informed them that if they did not pay the amount demanded the city would "take further legal action," which "may include ... requesting that a DEFAULT JUDGMENT" be entered. Revised notices omitted the reference to a default judgment and added a column indicating the "maximum fine allowed" for each infraction, stating that if the recipient failed to pay the city "may take actions to recover ... a larger amount [up to] the maximum fine allowed by law." All of the notices listed "outstanding parking tickets" and a telephone and address where recipients could receive further information.

Two cases involving the same demand notices have been decided in the Circuit Court of Cook County. In Stelzik v. City of Chicago, 85 CH 7631 (Cook County Circuit Court Jan. 21, 1986), decided eleven months before the district court's opinion, plaintiff paid $180 in fines and penalties and $27 in court costs...