Remm v. Landrieu

• Decision Date: 10 August 1976
• Docket Number: Civ. A. No. 76-3.
• Citation: 418 F. Supp. 542
• Parties: H. C. REMM, Jr., Individually and on behalf of all others similarly situated v. Moon LANDRIEU, Individually, and in his official capacity as Mayor of the City of New Orleans, et al.
• Court: U.S. District Court — Eastern District of Louisiana

418 F. Supp. 542

H. C. REMM, Jr., Individually and on behalf of all others similarly situated v. Moon LANDRIEU, Individually, and in his official capacity as Mayor of the City of New Orleans, et al.

Civ. A. No. 76-3.

United States District Court, E. D. Louisiana.

August 10, 1976.

Robert Hearin, New Orleans, La., for plaintiffs.

Philip S. Brooks, City Atty., New Orleans, La., for defendants.

OPINION

SEAR, District Judge:

This is an individual and class action for injunctive and declaratory relief, as well as for damages, arising under 42 U.S.C. § 1983. Plaintiffs challenge the constitutionality of a New Orleans city towing ordinance.

On December 30, 1975 H. C. Remm, the individual plaintiff and class representative, discovered that his car was missing from the place where he had parked it. Remm contacted the New Orleans Police Department Auto Pound and learned that his automobile had been ticketed, towed, and impounded. Remm went to the Auto Pound, amicably demanding the return of his car. Personnel at the Auto Pound refused to release the car without payment of the towing fee and accrued storage charges.

On January 5, 1976, Remm filed this suit and, pursuant to an agreement with counsel for the defendants later that same day, his vehicle was surrendered to him without payment of the charges demanded at the Pound. Subsequently, plaintiff appeared in person at the Violations Bureau and protested the ticket that he had received, at which time a date of trial on the merits of the violation was set and he was required to furnish bond in the form of his American Automobile Association card. Counsel for all parties agreed to submit the issue of validity of the city ordinance to the court on memoranda, reserving the damage question for a later trial.

Remm's car was towed and impounded pursuant to New Orleans Code § 38-274 which reads in pertinent part:

"Any unoccupied vehicle of any kind or description whatever found violating any traffic law shall be removed immediately and impounded by any police officer or duly authorized person and shall only be surrendered to a duly identified owner thereof upon the payment of fifteen dollars ($15.00) hereby declared to be the towing fee covering such impounding. Such owner shall thereafter have the responsibility of separately disposing of the violation charge against him at the Violations Bureau or the court having jurisdiction over such violations.

. . . . .

"In addition to the fee for towing said vehicle there shall be an additional fee of three dollars ($3.00) for storage of vehicle for each twenty-four (24) hours or part thereof over and above twenty-four (24) hours from the time vehicle is towed to the Department Pound. Total storage fee not to exceed seventy-five dollars ($75.00)."

The ordinance makes no provision for giving notice to the owner that his car has been impounded, and the parties agree that in practice no notice is ever given, save attempts at notice prior to the sale or other disposition of the vehicle following a ninety-day storage period. The towing fee and storage charges are collected without giving the owner of the vehicle an opportunity for a hearing on the merits of the traffic violation and regardless of whether the owner intends to contest the traffic ticket. No vehicle is ordinarily surrendered to its owner without payment of these charges.

In practice, according to the stipulation of the parties, once the owner has paid the towing fee and accrued storage charges, he is given the parking ticket and allowed to redeem his vehicle. At this point the owner must choose whether to pay the ticket or contest it. If he chooses the former course, he may pay the fine by mail or in person at the Violations Bureau. If he chooses the latter course, he must appear at the Violations Bureau where a date for trial is set upon the owner posting bond to assure his subsequent appearance at the trial. The amount of the bond is the minimum fine applicable. It may be posted in the form of cash, check, money order, Louisiana Driver's License, or American Automobile Association card.

If at the trial the defendant is found guilty of the violation, he must pay the fine. If he is found not guilty of course no fine is due and the defendant receives a letter from the judge advising the Department of Finance of the verdict and the owner is instructed to take the letter to the Police Auto Pound and surrender it to personnel there. The letter from the judge along with another form of its own is sent by the Auto Pound to the Department of Finance where within thirty days a check is mailed to the owner returning the towing fee and any storage charges which have been paid.

Remm attacks two aspects of the ordinance as violative of the due process guarantee of the Fourteenth Amendment: (1) the initial towing and impoundment of vehicles without prior notice or the opportunity for a hearing, and (2) the assessment of towing fees and storage charges without prior notice or the opportunity for a hearing. We believe that the ordinance is unconstitutional in the second aspect for the reasons set forth below.

The purpose of ensuring fair decision making "is to protect the individual's use and possession of property from arbitrary encroachment—to minimize substantively unfair or mistaken deprivations of property . . .."¹ To implement this policy, procedural due process requires that before any individual is deprived of a significant property interest through governmental action he must be accorded notice of the impending proceeding and the opportunity to be heard at a meaningful time, prior to the deprivation.

Ordinance 38-274 is enforced in two distinct phases: the towing phase and the fee collection phase. Under the terms of the ordinance an individual whose car is towed is deprived of two property interests: (1) an interest in access to and use of the impounded vehicle, and (2) an interest in the fees collected for towing and storage. The deprivation of the vehicle is initiated when the vehicle is towed and continues through the fee collection phase until the vehicle owner pays the fees. Deprivation of the fees takes place, of course, only at the second phase of enforcement. Both interests may be significant to the individual involved.² In each instance the deprivation may be merely temporary. Upon payment of the towing fee the vehicle is returned to its owner; and, if the owner is found to be not guilty of the traffic violation, he may eventually recover the towing fee itself. However, it is settled that even a temporary deprivation of property constitutes a "deprivation" within the meaning of the Fourteenth Amendment.³

In certain extraordinary circumstances an emergency may justify the seizure of property without due process of law. In Fuentes v. Shevin, 1972, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556, the Supreme Court addressed itself to these exceptional situations setting forth three prerequisites to summary seizure:

1. The seizure must be necessary to secure an important governmental or general public interest.

2. There must be a special need for very prompt action.

3. The State must have kept strict control over its monopoly of legitimate force: the person initiating the seizure must have been a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance.⁴

We have little difficulty determining that a vehicle which appears to be illegally parked may be towed to the City Auto Pound without affording its owner prior notice and the opportunity for a hearing. In this situation the three requirements of Fuentes are satisfied. Firstly, the seizure is necessary to protect the recognized interest of local governments in regulating the use of their streets and other public places.⁵ Secondly, public safety and convenience normally require the prompt removal of illegally parked vehicles. Thirdly, a city police officer must make some determination that a city traffic ordinance is being violated before the vehicle may be towed.

The constitutional defect however, appears at the second phase of enforcement. At that point, the seizure is no longer necessary to secure an important governmental or public interest. The interest at stake is the collection of the towing and storage fees from those guilty of traffic violations.⁶ If it were necessary to violate constitutional rights to secure this interest, then by the same logic the city could require payment of the fine for the parking ticket in advance also. Instead, in that instance, the city has chosen the constitutional alternative of requiring those who wish to contest violations to post a bond, insuring their future appearance in court and guaranteeing that the fine will be paid if the defendant does not appear. We do not suggest that the revision of this ordinance must follow the same pattern of requiring a bond to cover towing fees and storage charges. The form of any revision is entirely at the discretion of the city council. However, the fact that this alternative exists convinces us that the "necessity" requirement of Fuentes is not met by this ordinance and therefore the due process violation cannot on this count be justified.

The second requirement of Fuentes, that there be a need for very prompt action is also unsatisfied. Once the vehicle has been removed from the streets, public safety is no longer in jeopardy. Collection of towing fees and storage charges can await an adjudication without serious difficulty.

The third requirement, that the seizure be closely scrutinized by a government official who determines that, according to a narrowly drawn statute the seizure was necessary and justified, is also unfulfilled. Once a vehicle arrives at the Auto Pound the fees are collected from every owner without exception. Distinctions among the alleged violators are neither made nor attempted. There is, therefore, no...