Opposition Brief — Miller v. City of Chicago

Supreme Court, U.S,

FILED

No. 85-1522 APR 16 1986

JOSEPH F. SPANIOL, JR

CLERK

Ix Tue

Supreme Court of the Anited States

Octoser Term, 1985

COAD MILLER, individually and on behalf of himself and in

a representative capacity on behalf of a class of persons simi-

larly situated,

Petitioner,

vs.

CITY OF CHICAGO, a municipal corporation, and JOHN DOES,

One through Five, employees, agents and towing contractors,

Respondents.

On Petition For A Writ Of Certiorari To The United

States Court Of Appeals For The Seventh Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

JUDSON H. MINER*

Acting Corporation Counsel

of the City of Chicago

610 City Hall

Chicago, Hlinois 60602

(312) 744-7764

Attorney for Respondents

Mary K. Rocnrorp

Chief Assistant Corporation Counsel

Of Counsel * Counsel of Record

SL SL. SSL

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

ae

QUESTION PRESENTED

Whether the respondents’ procedures for towing re-

covered stolen vehicles are constitutional.

TABLE OF CONTENTS

QUESTION PRESENTED ..............2000-

TABLE OF AUTHORITIES ........2sccese0-

Si Ares OF FACED «2 cvicsuvebscsacends

REASONS FOR NOT GRANTING THE

WRIT OF CERTIORARI:

1. The Respondents Had Full Power To Assess

Charges For Towing And Storing Recov-

ered Stolen Vehicles .........-ccceee-

2. The Procedures For Towing Recovered

Stolen Vehicles Were Enacted For A

Proper Public Purpose And With Reason-

able Means Chosen To Accomplish This

ae The Procedures Are Constitu-

GUE ha 500 b0saceuceasereueeseaeeee

CURULASISGE ei dcccccscswsavovasvaspaeaneees

10

ill

TABLE OF AUTHORITIES

CASES: PAGE

Breath v. Cronvich, 729 F.2d 1006 (5th Cir. 1984) .

7

City of Bloomington v. Wirrick, 381 Ill. 347(1942) . = 7,8

City of Carbondale v. Brewster, 78 Ill. 2d 111

ee Dade han yo é bd h ss 4664 6s 6

Consol. Freightways Corp. of Del. v. Kassel, 730

fe Be ee | 4

Fireside Chrysler Plymouth-Mazda, Inc. v. Edgar,

Te SEE when ctrestcccssenseees 4

First National Bank v. County of Lake, 7 Ill. 2d

ea cin asso ee ces de bab des esas 6

Gibbs v. City of Chicago, 34 Ill. 2d 102 (1966) . 7

Gillam v. Landrieu, 445 F.Supp. 1030 (E.D. La.

Me eG ban ipo eS asc ersesccstneceieses 4,5,7

Gpichman v. Reuban Motors, Inc., 682 F.2d 1320

oe SE RR er ene rer 7

Hale v. Tyree, 491 F.Supp. 622 (E.D. Tenn. 1979) . 4

Huemmer v. Mayor and City Council, Etc., 474

Te Mr TE ME BOTOD sccccncvescecces 7

In re South, 689 F.2d 162 (10th Cir. 1982) .... 8

Mays v. Scranton City Police Dept., 503 F.Supp.

i ME pcb acessccsestvcnevessc 4

Means v. American Equitable Assur. Co., 186 Ark.

ee uk sus 6 pos es ooo 0) 6 4

Miller v. City of Chicago, 774 F.2d 188 (7th Cir.

ee Sereno Gok e cack sce oe ea se 1,3

Mister Softee of Illinois v. City of Chicago, 42 Ill.

App. 2d 414 (ist Dist. 1963) .............. 3

iv

Oklahoma Telecaster Ass'n v. Crisp, 699 F.2d 490

(10th Cir. 1983), rev’d on other grounds, 52

Se, SOLED cee race eu cRe eet Vekae 4

Park v. Adams, 289 S.W.2d 829 (Tex. 1956) .. 4

Parliament Ins. Co. v. Dept. of Revenue, 50 Il.

Ps Ee MUTE ved see CN era even 6

Quilici v. Village of Morton Grove, 695 F.2d 261

go Be a rere rrr ere: 6

Remm v. Landrieu, 418 F.Supp. 385 (M.D. Fila.

DE hac wkase seas seaaterea wes masses 7,9

Rozner v. Korshak, 55 Ill. 2d 43 (1973) ....... 8

Schuringa v. City of Chicago, 30 Ill. 2d 504 (1964) . 5

Stypmann v. City & County of San Francisco, 557

eR a ey) re 1,9

Sutton v. City of Milwaukee, 672 F.2d 644 (7th Cir.

= pate Fret Rien Sire ora ear aes eneree Sey rary Ap i eereae

Tolmetz v. Board of Education, 39 111.2d 593 (1968) . 4

Weiss, Inc. v. Whalen, 135 Mise. 290 (N.Y. 1929) . 4

Williamson v. Lee Optical Co., 348 U.S. 483 (1955) . 6, 10

STATUTES, ORDINANCES, AND REGULATIONS:

Municipal Code of Chicago, Section 27-367 ..... ye

Municipal Code of Chicago, Section 27-423 ..... 10

Chicago Police General Order 75-5 ............ 2, 10

Ill. Rev. Stat. ch. 24, par. 11-1-1 (1985) ....... 5

Ill. Rev. Stat. ch. 24, par. 11-80-2 (1985) ...... 5

Ill. Rev. Stat. ch. 24, par. 1-3-2 (1985) ........ 5

Ill. Rev. Stat. ch. 24, par. 11-141 (1985) ....... 7

Ill. Rev. Stat. ch. 95’, par. 11-1302 (1985) .... 5

Ill. Rev. Stat. ch. 95%, par. 4-202 (1985) ...... 5, 10

Ill. Rev. Stat. ch. 9512, par. 4-203(e) (1985) .... 5

No. 85-1522

In THE

Supreme Court of the United States

Octoser Term, 1985

~ a

ee

COAD MILLER, individually and on behalf of himself and in

a representative capacity on behalf of a class of persons simi-

larly situated,

Petitioner,

VS.

CITY OF CHICAGO, a municipal corporation, and JOHN DOES,

One through Five, employees, agents and towing contractors,

Respondents.

On Petition For A Writ Of Certiorari To The United

States Court Of Appeals For The Seventh Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

The Respondents, the City of Chicago, et al., by their

attorney, JUDSON H. MINER, Acting Corporation Counsel

of the City of Chicago, respectfully request that this Court

deny the petition for writ of certiorari, seeking review

of the Seventh Circuit’s opinion in this case. That opinion

is reported at 774 F.2d 188.

es

STATEMENT OF FACTS

A. The Respondents’ Procedures For Towing Recovered

Stolen Vehicles.

Section 27-367 of the Municipal Code of Chicago and

Chicago Police Department General Order 75:5 set forth

the procedures for towing recovered stolen automobiles.

The general order classifies as an ‘immediate tow” a

“vehicle that has been reported stolen and the vehicle’s

owner is not present at the location of recovery or the

vehicle is needed for investigation.” The general order re-

quires that police personnel notify vehicle owners of the

tow and their entitlement to a hearing on the validity of

the tow and any towing or storage charges. Section 27-367

of the Municipal Code states that the owner of a towed

automobile may obtain immediate possession of the vehi-

cle by furnishing evidence of title and paying a towing

fee of forty-five dollars (sixty-seven dollars for trucks and

commercial vehicles) and storage costs of five dollars per

day. The payment of the charges may be challenged under

section 27-367 by (1) requesting a hearing within twenty-

four hours or (2) securing immediate possession of the

vehicle by depositing twenty-five dollars and requesting

that a hearing be held within seven days.

B. Petitioner’s Challenges To These Procedures.

Petitioner filed this civil rights class action and charged

that the provisions of chapter 27 of the Municipal Code

of Chicago and the Chicago Police Department General

Order 75-5 violate the Fourteenth Amendment. The com-

plaint alleged that the provisions allow the tow and

storage of recovered stolen automobiles without the prior

consent of the owner (Complaint, C. 1, par. 11).

-_

The district court granted petitioner’s motion for sum-

mary judgment, holding that the procedures for towing

stolen automobiles were unconstitutional because pre-tow

notice was not provided to owners of stolen vehicles. The

court of appeals reversed the decision and held that the

“city is not constitutionally required to give pre-tow notice

nor prohibited from assessing towing costs upon individual

vehicle owners. . . .”” Miller v. City of Chicago, 774 F.2d

188, 196 (7th Cir. 1985). The court denied rehearing in

the case. The petitioner seeks a writ of certiorari and chal-

lenges the respondents’ assessment of towing and storage

fees against the owners of recovered stolen vehicles.

REASONS FOR NOT GRANTING THE

WRIT OF CERTIORARI

The petitioner challenges the assessment of towing and

storage fees against the owners of recovered stolen vehicles.

This challenge was rejected by the court of appeals. Miller,

774 F.2d at 196. The court did not, as petitioner contends,

“recognize the impropriety” of the fees (Petition, p. 8).

The assessment of fees is constitutional, for there is “noth-

ing arbitrary or irrational about these provisions allow-

ing the City to assess the cost of this particularized ser-

vice directly against the recipient of the service.” Jd.

1. The Respondents Had Full Power To Assess Charges

For Towing And Storing Recovered Stolen Vehicles.

Municipal legislation ‘“‘may derive its validity from sev-

eral grants of power... .”’ Mister Softee of Illinois v.

City of Chicago, 42 Ill. App. 2d 414, 419 (1st Dist. 1963).

|

|

a

The respondents’ power to assess charges for towing and

storing recovered stolen automobiles is based on the broad

police power of local governments and express statutory

grants of power.

The police power is an attribute of sovereignty inherent

in municipal government. The police power authorizes a

municipality to enact legislation to preserve and protect

the health, welfare, and safety of its citizens. Fireside

Chrysler Plymouth-Mazda, Inc. v. Edgar, 102 Il. 2d 1 (1984).

Pursuant to its police power, a local government, in its dis-

cretion, may determine what the public interest requires

and what measures are necessary to secure such interests.

Tolmetz v. Board of Education, 39 Ill. 2d 593 (1968).

Under the police power, a municipality may regulate the

public streets and, thus, assure the safety and convenience

of its citizens. Oklahoma Telecaster Ass’n v. Crisp., 699

F.2d 490 (10th Cir. 1983), rev’d on other grounds, 52

U.S.L.W. 4803 (1984); Consol. Freightways Corp. of Del.

v. Kassel, 730 F.2d 1139, 1147 (8th Cir. 1984). Private in-

terests in automobiles are subject to governmental limita-

tion and the exercise of police powers. Mays v. Scranton

City Police Dept., 503 F.Supp. 1255, 1261 (M.D. Pa. 1980).

Towing and impoundment of automobiles are procedures

to effectuate the police power in the protection of the

streets. Gillam v. Landrieu, 445 F.Supp. 1030 (E.D. La.

1978). The imposition of fees for the towing and impound-

ment of automobiles is incident to and a reasonable exer-

cise of the police power. See generally, Weiss, Inc. v.

Whalen, 135 Misc. 290 (N.Y. 1929); Means v. American

Equitable Assur. Co., 186 Ark. 88 (1932); Park v. Adams,

289 S.W.2d 829 (Tex. 1956).

The respondents acted to remove stolen vehicles from

the public streets and arteries and to prevent congestion

or jeopardy to public safety. Accordingly, the ‘‘govern-

pm a

ment’s interest [here] is in providing the best service

possible to promote the health, safety and welfare of its

citizens.”’ Gillam, supra, 445 F.Supp. at 1038. The measures

chosen to best achieve these objectives—towing, impound-

ment, and assessment of charges—were within the respon-

dents’ discretion and their broad police power.

Furthermore, specific statutory authority exists for the

respondents’ towing procedures. The Illinois General As-

sembly may delegate to municipalities the power to legis-

late on matters of purely local concern as well as the

police power to protect the public health, safety and wel-

fare. Schuringa v. City of Chicago, 30 Ill. 2d 504 (1964).

The Illinois General Assembly has empowered ‘“‘the cor-

porate authorities” of local governments to “pass and en-

force all necessary police ordinances” and to “regulate the

use of the streets’’. Ill. Rev. Stat. ch. 24, pars. 11-1-1 and

11-80-2 (1985). The corporate authority “may pass all ordi-

nances and make all rules and regulations proper or neces-

sary, to carry into effect the powers granted to munici-

palities. . . .” Ill. Rev. Stat. ch. 24, par. 1-3-2 (1985).

Additionally, the Illinois General Assembly has em-

powered police officers “to remove or cause to be re-

moved to the nearest garage or other place of safety any

vehicle found upon a highway’”’ which has been reported

stolen. Ill. Rev. Stat. ch. 9542, par. 11-1302 (1985). Muni-

cipal police also may tow a stolen vehicle which ‘comes

into the temporary possession or custody of a person in

this state.”’ Ill. Rev. Stat. ch. 954%, par. 4-202 (1985).

Furthermore, the General Assembly has provided that

“{wlhen a vehicle removal from either public or private

property is authorized by a law enforcement agency, the

owners of the vehicles will be responsible for all towing

costs.” Ill. Rev. Stat. ch. 95%, par. 4-203(e) (1985).

- =

A “legislative grant of power or authority to an admin-

istrative body or officer includes the grant of power to

do all that is necessary to execute that power or author-

ity.” Parliament Ins. Co. v. Dept. of Revenue, SO Ill. App.

24 341. 347 (1977). Therefore, the respondents possessed

full power to promulgate procedures for recovering stolen

automobiles, including the imposition of towing and stor-

age costs. The sovereign police power and the specific

grants of statutory power authorized the enactment of

these procedures.

te

:

The Procedures For Towing Recovered Stolen Vehicles

Were Enacted For A Proper Public Purpose And With

Reasonable Means Chosen To Accomplish This Pur-

pose. The Procecures Are Constitutional.

Legislative enactments designed to benefit the public

welfare are favored and presumed to be valid. City of

Carbondale v. Brewster, 78 Il. 2d 111 (1979). The courts

will overturn a police power measure “only if it is unrea-

sonable, clearly arbitrary, and has no foundation in the

police power.” Quilici v. Village of Morton Grove, 695

F 2d 261. 268 (7th Cir. 1982). The burden rests with the

party challenging a police measure to prove “that there

is no permissible interpretation which justifies its adop-

tion: or that it will promote the safety and general wel-

fare of the people.” First National Bank v. County of

Lake, 7 Il. 2d 213, 225 (1955). The police measure “need

not be in every respect consistent with its aims to be con-

stitutional. It is enough if there is an evil at hand for

correction, and that it might be thought that the par-

ticular legislative measure was a rational way to correct

it.’ Williamson v. Lee Optical Co.. 348 U.S. 483, 487-88

(1955). The procedures for towing recovered stolen vehi

cles address serious public concerns in a rational and ap-

propriate manner. Petitioner has not shown the pro

cedures to be violative of the Fourteenth Amendment.

— jm

The towing procedures allow the transport of stolen vehi-

cles to a safe place, the preservation of the automobiles,

and the prevention of further vandalism. The towing of

stolen cars removes them from the public streets and pre-

vents any possible congestion or jeopardy to public safe-

ty. The tow takes the car from the control of the thief

and thereby prevents the thief from driving it away, using

jit as an instrument in another crime, or illegally selling

the car. These procedures unquestionably protect the

public health, safety and welfare. The towing and im-

poundment of stolen cars and the imposition of costs serve

important public interests.

The courts consistently have recognized that when a car

is towed, the “government has an interest in imposing

the cost of removal upon the vehicle owner. . . .” Styp-

mann v. City & County of San Francisco, 557 F.2d 1338,

1343 (9th Cir. 1977). Accord, Gillam v. Landrieu, 455 F.

Supp. 1030, 1039 (E.D. La. 1978); Remm v. Landrieu, 418

F.Supp. 385, 393 (M.D. Fla. 1978); Breath v. Cronvich,

729 F.2d 1006, 1010 (Sth Cir. 1984); Goichman v. Reuban

Motors, Inc., 682 F.2d 1320, 1324-25 (9th Cir. 1982),

Huemmer v. Mayor and City Council, Etc., 474 F.Supp.

704, 709 (D. Md. 1979). The Gillam court explained the

government's interest in the collection of towing and stor-

age fees: “(t]he government is not engaged in the busi-

ness of providing car storage, but rather does this as a

necessary incident to its policing of the streets.” 455 F.

Supp. at 1039. Moreover, the power of local governmen-

tal entities to impose fees pursuant to the police power

is established. See, e.g., Ill. Rev. Stat. ch. 24, 11-141 ef

seq. (1985) (provisions authorizing municipalities to operate

sewer systems and to establish rates and charges for the

operation of those systems); Gibbons v. City of Chicago,

34 Ill. 2d 102 (1966) (upholding the municipal power to

impose a license fee), City of Bloomington v Wirrick, 381

Ill. 347 (1942) (upholding that the power to impose park

ing meter charges is a “power incident to and implied

in the power to regulate and limit the time and places

in which parking may be permitted”), Rozner ' Korshak,

55 Ill. 2d 43 (1973) (upholding fees contained in “Wheel

Tax Ordinance” of Chicago).

That cars are stolen with daily frequency increases the

governmental interest in the towing and the assessment

of charges. The record establishes that in 1980, over

299 000 automobiles were reported stolen and over 22,000

stolen cars were recovered. The police have limited re

sources to devote to preventing” further theft or vandal

ism to the thousands of stolen vehicles recovered annually.

Sutton v City of Milwaukee, 6§72 F.2d 6-44, H45 (7th Cir

1982). The public interest in safeguarding the street and

in the efficient use of police-resources are served well by

the towing and impoundment of stolen automobiles and

the assessment of charges on the owner.

The towing and impoundment of recovered stolen autos

together with the imposition of reasonable costs on the

owner are rational means to further legitimate govern

ment interests. The storage and towing fees are reason

able and appropriate. The fees are not arbitrary and are

not calculated to be a profit-making device for the city

Petitioner has not shown the towing procedures to be un

constitutional.

The petitioner argues, without citation of authority, that

the assessment of fees for the recovery of stolen vehi

cles constitutes a “taking’’ without due process (Petition,

p. 8). The uniform assessment of fees by a governmental!

body for a rational purpose does not amount to a “tak

ing.” In re South, 689 F.2d 162 (10th Cir. 1982). “Such

an argument could be made against every governmental!

tax levy.” In re South, 689 F.2d at 166. Furthermore,

==

the respondents’ procedures provide petitioner with the

opportunity to contest the validity of the storage and tow

ing fees. The payment of the charge may be challenged

inder section 27-367 of the Municipal Code of Chicago by

1) requesting a hearing within twenty-four hours or (2)

securing immediate possession of the vehicle by deposit-

ing twenty-five dollars and requesting that a hearing be

held within seven days. The assessment of towing and

storage charges on the owner has been held unconstitu

tional only where the charges must be prepaid fully before

the hearing and the release of the car. See, ¢.g., Kemm

/ Landrieu. supra, Stypmann, supra, Hale v Tyree, 19]

F Supp. 622, 626 (E.D. Tenn. 1979). However, the respon

dents’ procedures provide owners with an opportunit)

post bond and obtain release of the vehicle hefore th

hearing.

The petitioner asserts that the fees are unrea

DeCAUSe the stolen cars are not towed dire

owner s home (Petition. Dp 5). The respor dents reas

have determined that a tow 10 the nearest

more practical and efficient. A tow to the owne!

which could be located outside the boundanes ot '

cannot be defended as more feasible or more e

Such a tow wo ild certainly increase the expenses

time of the tow, and tne petitioner still wou

itv absorb the ful “yats

Petitioner contends that the fees are illegal because

police do not charge for the transport or storage of otne!

recovered property. Petition. p. i). This challenge to the

towing procedures falls Stolen automobiles, unlike other

stolen goods, pose special problems of recovery. No other

stolen good is the size of the automobile. The costs of and

equipment involved in the towage and transport of stolen

vehicles are self-evident. The costs of the storage of the

; ; | J .

automobiles aiso are disting tishable from the costs of the

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storage of other recovered goods. The respondents, by

state law and municipal ordinance, are required to secure

recovered automobiles, inventory and protect the contents

of the automobiles, and maintain records on the tows and

recoveries. Ill. Rev. Stat. ch. 95, par. 4-202 (1985); Muni-

cipal Code of Chicago, sec. 27-423. The stolen vehicles are

locked and “legally, safely, and continuously parked” in

an automobile pound of the Chicago Police Department.

General Order 75-5(aX2), (d) and (f). A rational basis exists

for the imposition of charges for the recovery of stolen

automobiles and not for the recovery of other stolen

goods. Thus, the charges are constitutional. Williamson

v. Lee Optical Co., 348 U.S. 483, 489 (1955).

The respondents enacted the procedures for recovering

stolen vehicles in the public interest and with rational

measures, and the procedures do not offend the Four-

teenth Amendment.

CONCLUSION

For these reasons, the Petition for Writ of Certiorari

should be denied.

Respectfully submitted,

JUDSON H. MINER*

Acting Corporation Counsel]

of the City of Chicago

610 City Hall

Chicago, Illinois 60602

(312) 744-7764

Attorney for Respondents

Mary K. Rocurorp

Chief Assistant Corporation Counsel

Of Counsel * Counsel of Record