Valdez v. City of Ottawa

JUSTICE HEIPLE, specially concurring:

In early May of 1979, plaintiffs’ 1966 Pontiac conked out while being operated on Frontage Road in Ottawa. The car was abandoned on the shoulder of the road by the plaintiffs. Sometime later, the Ottawa police discovered the car and placed a tow sticker on the windshield. The sticker contained language to the effect that the automobile would be towed away unless moved by the owner. A full week or more elapsed after the tow sticker was placed on the windshield. Then, the police authorized Kammerer’s Auto Wrecking to tow the vehicle and store it in their auto salvage yard.

At no time did the police or the junkyard ever contact the plaintiffs to advise them that the car was going to be towed or, after the fact, that the car had been towed. The owners, however, had actual notice of the tow after the car was in the junkyard. During the approximate period of two months that the car was in the junkyard, Mrs. Valdez twice visited the yard, once to find out if her husband could work on the disabled car in the junkyard, and again to remove the license plates from the car to place them on a different car. Despite actual notice as to the actual location of the car and the fact that the plaintiffs could remove it if they would pay a $70 towing fee, the plaintiffs took no other action.

Later, in July, the junkyard owners destroyed the car after first obtaining a destruction permit issued by the Ottawa Police Department. No notice of the application for the permit, the issuance of the permit, nor the impending destruction of the car was given to the owners prior to the destruction.

The only real issue in this appeal is whether plaintiffs were entitled to notice and an opportunity to be heard prior to the destruction of their property. They were. Failure to so advise them was clearly wrong. I cannot agree, however, with the breadth of the language which my colleagues choose to acknowledge this entitlement.

My colleagues assert that: “Towing a car without prior notice to the owner is a violation of due process rights.” Such proposition is false. It is not a correct statement of the law. To bolster their assertion, the majority cite Boddie, a case involving State welfare assistance; and Fuentes, a replevin case, neither of which bears any relationship to the facts of the case at hand.

The police and the towing company acted reasonably and within the letter of the law in towing away the plaintiffs’ car after it had been abandoned in an inoperable condition along the shoulder of the road. There is no statute, State or Federal, that would have required the Ottawa Police Department to give advance notice of this tow.

Although appellants have cited the ruling of a Federal district judge supporting their rationale, such a decision is neither controlling nor authoritative so far as the Illinois courts are concerned. And the rationale of that decision is not persuasive. No reported case from an Illinois reviewing court has been cited which supports the plaintiffs’ position. Nor has a supporting decision been cited from our Seventh U.S. Circuit Court of Appeals or the United States Supreme Court. The absence of such authority is not surprising. A rule of law which would require advance notice to the owner of a vehicle which had been abandoned on a public right-of-way that would require the government to give advance notice of a proposed tow would be a radical departure from existing law, practice and precedent. Such advance notice would serve no useful purpose either public or private. A requirement of pre-tow notice could, indeed, be detrimental to both public and private interest in the use of the public ways.

Section 4 — 201 et seq. of the Illinois Vehicle Code addresses the problems of abandoned, lost, stolen, or unclaimed vehicles. (Ill. Rev. Stat. 1979, ch. 95*2, par. 4 — 201 et seq.) This statute makes it clear that nobody has the right to leave his car on a public thoroughfare unclaimed and unattended indefinitely. In fact, the Ottawa police were empowered to tow plaintiffs’ vehicle once it was left unattended for more than 24 hours. Ill. Rev. Stat. 1979, ch. 95%, par. 4 — 203(c).

When, however, the city and the junkyard owners combined their efforts to destroy the car without giving notice of the impending destruction and affording the owners an opportunity to contest such destruction, the defendants went too far. The destruction of the car in this case deprived the plaintiffs of both procedural and substantive due process of law under both the Illinois and the United States constitutions.

Accordingly, I concur with the reversal and remand.

I further agree that any liability of defendant Kossaris requires an examination of the defense of qualified immunity which he claimed. (Scheuer v. Rhodes (1974), 416 U.S. 232, 245 , 40 L. Ed. 2d 90, 102 , 94 S. Ct. 1683, 1691 .) The applicability of such defense turns on the question of Officer Kossaris’ good faith, a question of fact.

Limited to the views expressed above, I concur with the reversal and remand directed by the majority.