Sutton v. City of Milwaukee, Civ. A. No. 80-C-445.
| Decision Date | 19 August 1981 |
| Docket Number | Civ. A. No. 80-C-445. |
| Citation | 521 F. Supp. 733 |
| Parties | James SUTTON, Jr., Gloria Anderson, Juan Hernandez, Jeffrey Grygny, John Gavin and Margaretta Pickens, individually and on behalf of all other persons similarly situated, Plaintiffs, v. CITY OF MILWAUKEE; Harold A. Breier, individually and in his official capacity as Chief of Police of the City of Milwaukee; Herbert A. Goetsch, individually and in his official capacity as Commissioner of Public Works of the City of Milwaukee; Harold F. Leatherby, individually and in his official capacity as head of the Central Board of Purchases for the City of Milwaukee; Wayne F. Whittow, individually and in his official capacity as City Treasurer for the City of Milwaukee; Menzl's Towing Service, Inc., a domestic Wisconsin corporation, and their agents, employees, successors in office, assistants, and all others acting in concert or cooperating with them or at their direction or under their control, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
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Lawrence G. Albrecht and Mary M. Gundrum, Legal Action of Wis., Inc., Milwaukee, Wis., for plaintiffs.
I. B. Shapiro, Shapiro, Gorsky & Dubin, Milwaukee, Wis., for defendant Menzl's Towing Service, Inc.
Linda Uliss Burke, Asst. City Atty., Milwaukee, Wis., for remaining defendants.
DECISION AND ORDER
In a decision dated March 9, 1981 I ordered the plaintiffs' motion for a preliminary injunction consolidated with a trial on the merits pursuant to Rule 65 of the Federal Rules of Civil Procedure. Subsequently, the plaintiffs moved for summary judgment. A plethora of affidavits, documents and written arguments have been submitted in support of and in opposition to the motion. Oral arguments were entertained on June 26, 1981.
The plaintiffs challenge the validity of various ordinances of the City of Milwaukee and statutes of the State of Wisconsin relating to the towing, storage and disposal of motor vehicles removed from the streets of the city. The original plaintiff in the action was James Sutton, Jr. Additional named plaintiffs Gloria Anderson, Juan Hernandez, Jeffrey Grygny, John Gavin and Margaretta Pickens were permitted to intervene in the action in a decision and order dated February 26, 1981.
In a decision dated December 10, 1980, I granted the plaintiffs' request for class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure. The order defined the class as:
The first class and subclass are concerned with Section 349.13(3) Stats., which provides:
Chapter 346 states rules of the road regarding moving violations and parking restrictions. Chapter 349 grants power to local authorities to restrict the stopping, standing or parking of vehicles beyond chapter 346 restrictions. Section 349.13(3) also authorizes local authorities to assess reasonable charges for removal and storage against the owner or operator of seized vehicles.
Milwaukee Ordinance § 101-25(1), attacked by the first class and subclass, was enacted pursuant to § 349.13(3). It authorizes traffic officers to remove and store vehicles found to be in violation of any one of nine sections of the Milwaukee Code. Removal may be performed by the traffic officer or by a towing company under contract with the City. The ordinance sets the charges for removal and storage at $50, payable to the Police Chief who, upon payment, issues a receipt and authorization for release of the towed vehicle.
The state statute under attack by the second class and subclass is § 342.40, which provides for the identification of abandoned motor vehicles and proscribes procedures for their removal and disposal. A vehicle can be declared abandoned if it is left unattended "for such time and under such circumstances as to cause the vehicle to reasonably appear to have been abandoned." The statute's notice requirement informs the owner post-seizure that failure to redeem the vehicle by payment of all assessed charges is "deemed a waiver of all right, title, and interest in the vehicle and a consent to the sale of the vehicle." The statute also authorizes municipalities and counties to enact ordinances governing abandoned vehicles.
Milwaukee Code of Ordinances § 105-65 prohibits anyone from leaving a vehicle unattended on public or private property "under such circumstances as to cause such motor vehicle ... reasonably to appear to have been abandoned." A vehicle so situated for more than 48 hours is deemed to have been abandoned.
Milwaukee Code of Ordinances § 101-25(3) provides that towed vehicles not claimed by the owner within 30 days shall be deemed abandoned. Accordingly, the City can declare vehicles abandoned which are towed and stored for any violations of § 101-25(1).
When a vehicle is declared abandoned under either § 101-25(3) or § 105.65, the Commissioner of Public Works is authorized by § 105-65 to impound it. A vehicle can be reclaimed upon payment of a "reasonable sum" for storage, towing and other expenses. If the vehicle is not reclaimed within 30 days after its initial storage, a notice must be sent to the Central Board of Purchases authorizing its sale. Personal notice of the time and place of the sale is not required to be given to the owner. After the sale, the City deducts expenses for the care and sale of the vehicle and credits the balance to the City Treasurer to be applied to the general City Fund.
Over 30 affidavits have been submitted by the plaintiffs in support of the motions presently before the court. Although the defendants have taken issue with some of the factual allegations, I believe the material facts that bear upon the facial constitutionality of the questioned statutes and ordinances and upon the actual practices employed in implementing the laws are not in significant dispute. Thus, the case is appropriate for resolution under Rule 56 of the Federal Rules of Civil Procedure.
Mr. Sutton alleges that on February 12, 1980, Milwaukee police ordered Menzl's Towing Service to seize, tow and store his 1972 Oldsmobile pursuant to Wis.Stats. § 349.13(3) and Milwaukee Ordinance § 101-25(1). On February 13, 1980, Sutton went to the Traffic Bureau and offered to pay the $50 towing and storage fee to obtain the release of his car. According to Sutton, the police refused to release his auto until he paid two outstanding traffic commitments for $100 and $70, and agreed to sign a personal recognizance bond to appear in court on recent parking tickets. He told them that he was financially unable to pay the sum. Subsequently, a Traffic Bureau officer advised that before the car would be released, Sutton would also be required to post a $75 bond on a state charge of driving without a license. The total amount demanded before release was $295. Sutton questioned the validity of the state charge and the $70 commitment, but was told by Traffic Bureau officers that the car would only be released upon full payment.
Subsequently, Sutton received a letter, dated March 26, 1980, from the City's Central Board of Purchases. The letter declared his car abandoned pursuant to Wis. Stats. § 342.40 and Milwaukee Ordinances §§ 105-65 and 101-25(3), and said it would be sold. Sutton called the Central Board upon receipt of the letter. He stated that he had no intention of abandoning the car and that he had not reclaimed it because he did not have all of the money the Police Department was demanding. Sutton was told that additional storage charges were accruing at the rate of $2.00 per day.
Sutton ultimately obtained release of his car by paying $50.00 for towing and storage, and $100.00 for one commitment; additionally, he expunged the $70.00 commitment in Milwaukee Municipal Court, obtained a dismissal in State Circuit Court of the driving without a license charge. He did not pay any additional storage charges.
Due to the seizure and retention of his car, Sutton maintains that he suffered lost wages, additional transportation expenses, physical damage to his car, personal hardships and inconveniences. He claims compensable damages of $2,000. The other named plaintiffs make somewhat similar claims against the defendants. Additionally, the following class claims are raised:
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