# Opposition Brief — Miller v. City of Chicago > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1596%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1986 - **Citation:** 476 U.S. 1105 ## Text 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 —— ee = 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1596%3A2. Public record. Not legal advice.