Patterson v. Cronin

Citation650 P.2d 531
Decision Date23 August 1982
Docket NumberNo. 80SA80,80SA80
PartiesStephen PATTERSON, Plaintiff-Appellee, v. Dan CRONIN and the City and County of Denver, a municipal corporation, Defendants-Appellants.
CourtSupreme Court of Colorado

Frye & Sawaya, John R. Frye, Jr., Richard B. Rose, Denver, for plaintiff-appellee.

Max P. Zall, City Atty., Gerald Himelgrin, Asst. City Atty., Denver, for defendants-appellants.

ERICKSON, Justice.

The appellant, City and County of Denver (Denver), has appealed from a decision of the Denver District Court which held that service of a summons for a parking violation by affixing a summons and complaint to an unattended automobile is invalid. The district court concluded that the method of service of process, permitted by section 505.4 of the Revised Municipal Code of the City and County of Denver (Municipal Code), 1 was defective because it did not comply with the methods of service required by Rule 206(f) of the Colorado Municipal Court Rules of Procedure (Municipal Court Rules). 2 We affirm the district court judgment but upon different grounds.


Prior to August 17, 1977, Stephen Patterson's Checker automobile, bearing New Mexico license plate number BSB065, was illegally parked in Denver on seven separate occasions. In each instance, a summons and complaint was affixed to the windshield of his automobile. The summons ordered Patterson to appear before the Denver Traffic Violations Bureau within seven days to answer the alleged violation of the Municipal Code for illegal parking. Additionally, each summons contained the following warning:


In each of the seven instances, Patterson failed to respond. Accordingly, the Denver Traffic Violations Bureau issued an order that his automobile be immobilized in accordance with the provisions of section 505.11-1(15) of the Denver Municipal Code. 3 Pursuant to the order, a "boot" was attached to the automobile on August 17, 1977, by a member of the Denver Sheriff's Department. 4 In addition, an immobilization notice was affixed to the vehicle which provided in pertinent part:


Release can be obtained at the Clerk's Office of the county court, Room 106, City and County Building, .... Arrangements for the release must be made within 72 hours after the installation of this device or the vehicle will be removed from the street and impounded pursuant to section 505.11-1(15). NO CHECKS ACCEPTED IN PAYMENT OF FINES."

The boot was removed the following day when Patterson appeared before the traffic bureau and paid his accumulated fines and a ten dollar "boot" fee. 5

On August 30, 1977, Patterson filed a civil rights action in the Denver District Court alleging that the City's failure to provide a hearing before immobilizing his automobile violated his right to due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and Article II, section 25 of the Colorado Constitution. He sought damages pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1985 for the alleged unconstitutional deprivation of the use of his automobile. 6 In ruling on the complaint, the trial court did not reach the issue of whether due process required a predeprivation hearing before a motor vehicle may be immobilized. Instead, the court concluded that because the service of the individual parking summonses by affixing them to Patterson's automobile did not comply with the notice requirements of C.M.C.R. 206(f), Patterson was not required to respond to the parking violation charges. Accordingly, the subsequent immobilization of his vehicle pursuant to section 505.11-1(15) constituted a taking of property without due process of law. The court then concluded that Patterson failed to prove actual damage resulting from the immobilization of his vehicle but that Patterson was entitled to nominal damages in the sum of $250.


Initially, we disagree with the trial court's conclusion that Denver's practice of affixing a summons and complaint to the windshield of an unattended motor vehicle is improper notice of a parking violation. Although the method of service in issue here is not specifically sanctioned by C.M.C.R. 206(f), we hold that it is sufficient for the limited purpose of notifying the owner of an unattended motor vehicle of a parking violation. 7

The authority to promulgate and interpret the Municipal Court Rules is vested in this Court pursuant to Article VI, sections 2 and 21 of the Colorado Constitution. Fundamental rules of statutory construction require that the Municipal Court Rules be liberally construed when read as a whole, and we must adopt a construction consistent with the purpose of the rules. Rowe v. Watered Down Farms, 195 Colo. 152, 576 P.2d 172 (1978); Westminster v. Phillips, 164 Colo. 378, 435 P.2d 240 (1967). The purposes of the Municipal Court Rules are to "secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay." C.M.C.R. 202. Denver issues over 650,000 summonses for illegal parking each year. To require personal service of each summons would not be consistent with the purposes of the Municipal Court Rules in securing simplicity in procedure or eliminating unjustifiable expense and delay. The Municipal Court Rules were not intended to provide a basis for serving the owner or possessor of unlawfully parked motor vehicles. A requirement of personal service for such violations would be impracticable and unduly burdensome on Denver's law enforcement resources and would unreasonably delay the resolution of the charges. Prima facie responsibility for an unlawfully parked motor vehicle may be imposed upon the registered owner by a municipality's use of its police power in the enactment of traffic ordinances. City of Columbus v. Webster, 170 Ohio St. 327, 164 N.E.2d 734 (1960). Accord Baker v. City of Iowa City, 260 N.W.2d 427 (Iowa 1977).

We do not believe that fundamental principles of due process require personal service of parking summonses. In Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed.2d 865 (1950), the United States Supreme Court set forth the following test to be applied in determining whether the method of service utilized to provide notice satisfies the requirements of due process:

"The means employed [to provide notice] must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected." 339 U.S. at 315, 70 S.Ct. at 657, 94 L.Ed.2d at 874.

See also MacMillan v. MacMillan, 174 Colo. 20, 482 P.2d 107 (1971). Applying the Mullane test to the method of service now under review, we conclude that the practice of affixing summonses and complaints to illegally parked vehicles which are left unattended is a method of service reasonably certain to provide notice of the violation. Although a summons so served may not always be received due to outside forces, due process does not require that the adopted method of service be absolutely certain to provide notice in every instance. Mullane v. Central Hanover Bank and Trust Co., supra; see also MacMillan v. MacMillan, supra. In addition, if no response to the summons is received by the Traffic Violations Bureau within seven days, section 505.5 of the Denver Municipal Code provides that a subsequent notice of the violation shall be mailed to the violator. 8

We therefore hold that the fundamental principles of due process are satisfied by the methods of service and the notice of parking violations currently provided by Denver. Accordingly, we reverse the decision of the trial court on the issue of service.


Patterson claims that the immobilization of his vehicle without notice and the right to a hering violated his right to due process of law guaranteed by the Fourteenth Amendment to the United States Constitution and Article II, section 25 of the Colorado Constitution. 9 We agree.

Procedural due process requires that a person with a possessory interest in property seized by the state must be afforded an opportunity for a hearing and adequate notice of the hearing. North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975); Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965); New Safari Lounge v. Colorado Springs, 193 Colo. 428, 567 P.2d 372 (1977). As the United States Supreme Court has stated in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972):

"For more than a century the central meaning of procedural due process had been clear: 'Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.' It is equally fundamental that the right to notice and an opportunity to be heard 'must be granted at a meaningful time and in a meaningful manner.' " (Citations omitted.) 407 U.S. at 80, 92 S.Ct. at 1994, 32 L.Ed.2d at 569-70.

As now enforced, the property interests deprived by the immobilization procedure of section 505.11-1(15) of the Denver Municipal Code are twofold: (1) an interest in and use of the immobilized vehicle; and (2) an interest in the "boot" fee collected by Denver for the removal of the immobilization device. Both interests may be significant to the individual involved.

First, an owner's right to the continued possession and uninterrupted use of his vehicle is protected by the constitutional provisions of due process. A person's ability to make a living as well as access to both the necessities and amenities of life may depend on...

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