Saukstelis v. City of Chicago

• Decision Date: 21 June 1991
• Docket Number: No. 90-3258,90-3258
• Citation: 932 F.2d 1171
• Parties: Laura SAUKSTELIS, et al., Plaintiffs-Appellants, v. CITY OF CHICAGO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1171

932 F.2d 1171

Laura SAUKSTELIS, et al., Plaintiffs-Appellants, v. CITY OF CHICAGO, Defendant-Appellee.

No. 90-3258.

United States Court of Appeals, Seventh Circuit.

Argued April 8, 1991.

Decided May 16, 1991.

Rehearing Denied June 21, 1991.

James C. Reho and Michael B. Lebman, Chicago, Ill., for plaintiffs-appellants.

Kelly R. Welsh, Asst. Corp. Counsel, Office of the Corp. Counsel, Lawrence Rosenthal, Deputy Corp. Counsel, Brian Trubitt, Office of the Corp. Counsel, Appeals Div., David Rubman and Stanley Berman, Office of the Corp. Counsel, Chicago, Ill., for defendant-appellee.

Before BAUER, Chief Judge, and CUDAHY and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

Collecting fines for parking in forbidden zones and like offenses is hard to do. The fines are small individually but large in the aggregate. Chicago tried private collection agencies, an experiment forged in bribery, United States v. Davis, 890 F.2d 1373 (7th Cir.1989), and tempered in litigation, Horn v. Chicago, 860 F.2d 700 (7th Cir.1988). Dunning letters did not work very well. Chicago tried partial amnesties, but these work only when unexpected, and so cannot be repeated. (If drivers expect deep discounts during periodic amnesties, they will park where they please, put the tickets in the glove box, and wait for the City to capitulate.) More recently Chicago induced the state legislature to threaten the suspension of scofflaws' drivers' licenses; it has begun treating tickets as administrative (rather than criminal) complaints on which it follows up aggressively. Ill.Rev.Stat. ch. 95 1/2 p 11-208.3 (1989); Chicago Municipal Code Sec. 9-100-010 (1990). It remains to be seen whether the new system will best its predecessors' records.

One recent addition to Chicago's arsenal is the Denver boot, named after the city where it was first used--and first declared unconstitutional. Patterson v. Cronin, 650 P.2d 531 (Colo.1982). The boot is a huge clamp applied to a wheel of a car. No car can move with the clamp attached. It is sturdy enough to resist determined efforts by drivers to free their vehicles from its embrace. Joining Denver, Los Angeles, San Francisco, and the District of Columbia, Chicago decided to give drivers the boot to make them pay attention to parking tickets.

The Denver boot is a form of pre-trial attachment--in both senses. To rid a car of the boot the owner must pay a booting fee and take one of these options: (a) pay the tickets in full; (b) file appearances in the Circuit Court of Cook County contesting the tickets; or (c) post collateral for half of the value of the tickets (up to $500) and promise to file appearances within 21 days. Chicago Municipal Code Sec. 9-60-010(e). This sequence creates a constitutional difficulty, adverted to in Sutton v. Milwaukee, 672 F.2d 644, 648 (7th Cir.1982), and fatal in Patterson. The due process clause of the fourteenth amendment requires notice and an opportunity for a hearing before the government may deprive a person of property. An auto is property, and immobilization is a form of deprivation. Sutton holds that towing without prior notice is proper because the risk of error is small and the governmental need great: the car may block essential access. We reserved the question whether a city could use towing to collect revenues, divorced from any interest in keeping the streets clear. The Denver boot freezes the car in place, which does not promote the flow of traffic. Its only use is to induce people to cough up money. Plaintiffs are motorists with lots of outstanding tickets; some have been booted, and others claim to fear imminent booting. Sutton hands them an issue.

They do not seize it. Indeed they do not cite Sutton, or Patterson. Perhaps plaintiffs acknowledge the inevitable. Attachments are problematic only if the seizure precedes the opportunity for hearing. Pinsky v. Duncan, 898 F.2d 852 (2d Cir.), cert. granted under the name Connecticut v. Doehr, --- U.S. ----, 111 S.Ct. 42, 112 L.Ed.2d 18 (1990) (argued Jan. 7, 1991). Chicago offers hearings, hearings, and more hearings. The parking ticket is itself a notice, addressed to the owner of the car and offering the opportunity for a hearing. At the time this case began, the ticket was also a complaint, filed in the Circuit Court of Cook County. (Today the ticket starts an administrative proceeding rather than a suit.) Under both judicial and administrative systems, the City follows the ticket with several notices to the owner of the vehicle at the address reflected in the state's registration records. Ill.Rev.Stat. ch. 95 1/2 p 11-208.3(b)(3). An owner who accumulates 10 tickets that have been neither paid nor contested receives a new notice, threatening the boot unless within 21 days he pays the fines, files an appearance contesting them, or applies for an administrative hearing concerning the tickets and the propriety of booting. If the owner does not respond within the 21 days, Chicago puts the car on the list eligible for booting. Once the car has been booted, Chicago offers the owner still more hearings. Id. at p 11-208.3(c)(4). This cascade of notices and opportunities for hearing is quite sufficient under the due process clause. Mail to the registered owner of the car, at the address in the state's files--an address the owner is supposed to keep current--is reasonably calculated to produce actual knowledge. Ma v. Continental Bank N.A., 905 F.2d 1073, 1076 (7th Cir.1990); Virginia Lime Co. v. Craigsville Distributing Co., 670 F.2d 1366 (4th Cir.1982). Repeated notices are almost certain to do so. An owner who ignores 10 tickets together with their follow-up notices and also ignores the 21-day warning of eligibility for booting is in no position to insist that the City has put action ahead of dialog.

Plaintiffs' argument is not procedural but substantive due process. This doctrine with an odd appellation ("substantive process?" ^* ) and a checkered history once allowed courts to review the wisdom of state laws. They seized the opportunity to invalidate whatever struck them as unwise. E.g., Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905). Those days have passed, at least when the subject is economic regulation. North Dakota Board of Pharmacy v. Snyder's Drug Stores, Inc., 414 U.S. 156, 94 S.Ct. 407, 38 L.Ed.2d 379 (1973); Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976). Booting is a form of economic regulation. Although in Los Angeles the loss of one's car may be the functional equivalent of imprisonment, in Chicago the owner of a booted car can rent another one or resort to taxis or public transportation. Expenses of substitutes are a far cry from loss of liberty.

Outside the realm of personal liberties, substantive due process may be a misnomer for the enforcement of rights expressly established in the Constitution and applied to the states through the fourteenth amendment. Schroeder v. Chicago, 927 F.2d 957, 961 (7th Cir.1991). Plaintiffs do not identify any...