Chapman dismisses four proposed class actions over cities' tow fee ordinances

By Ann Maher | Jun 6, 2012



Madison County Associate Judge Thomas Chapman has dismissed without prejudice four proposed class actions that challenged the constitutionality of tow fee ordinances adopted by the cities of Alton, Collinsville, Edwardsville and Granite City.

Chapman entered four identical orders June 1, stating, "Statutes are presumed constitutional, and the party challenging the validity of a statute has the burden of clearly establishing that it is unconstitutional."

The suits filed last December sought class status for drivers ticketed for DUI or driving with a suspended or revoked license and who were made to pay a premium fee to retrieve their impounded vehicles.

Lead plaintiff attorney Brian Polinske of Edwardsville argued that ordinances assessing administrative fees for impounded vehicles were not constitutional because they were not tow fees but merely receipts that were unrelated to the cost of towing, towing services or actual services provided.

Attorneys Eric D. Holland and Steven L. Groves of Holland, Groves, Schneller and Stolze in St. Louis also represent the plaintiffs.

Chapman wrote that, "Since statutes enjoy a strong presumption of constitutionality, courts must construe statutes in order to uphold their constitutionality whenever reasonably possible. A statute is presumed valid and a party challenging it has the burden of proving it violates one's right to due process...and the facts relied upon to rebut the presumption must be specifically set forth in the complaint."

The cities fought the cases, which also alleged that the due process rights of the owners of the impounded vehicles were violated.

Collinsville Mayor John Miller told the Record earlier this year that his city's two-tier tow fee structure ($100 and $500) is justifiable because of increased costs associated with making DUI arrests.

"It's simple," Miller said. "If you break the rules you're going to have to pay for it."

"The big thing is when we impound a vehicle it takes an officer a half hour to an hour to go through the vehicle and inventory everything," he said. "It takes him off the street." Miller also said there is paperwork related to those arrests that take up the valuable time of officers.

"Why should the law breakers get off scot free," he said.

Miller also had a message for those who don't want to pay higher towing fees in Collinsville: "Just don't drive in Collinsville if you've been drinking alcohol or there is a warrant for your arrest."

In the case against Granite City, city attorney Brian Konzen argued that plaintiff David Funkhouser - who claimed he had to pay the higher of two authorized administrative towing fees of $400 versus $150 to retrieve his car after a July 10, 2011 arrest - was entitled to a hearing to contest the fee, but failed to avail himself to it.

Polinske responded to Granite City's motion to dismiss by stating that when a constitutional challenge to an ordinance is raised the plaintiff is not first required to comply with the exhaustion of remedies doctrine.

He wrote that the plaintiff has pleaded with specificity that he has been deprived of the "substantive" due process protections afforded him by the Illinois Constitution.

In Chapman's two page, typed order, he began by writing that if there is a due process attack on an enactment, the complaint should indicate whether it is facial, or as applied..."and the initial complaint herein does not specify."

"Related to whether the challenge is facial, is – what has to be dealt with first," he wrote.

"This question of primacy is relevant because some of the defendant municipalities want to delve into, on motion to dismiss, what informs the dollar figure, what it goes to (personnel costs, processing time, etc.), which could speak to the nature of the ordinance, as tax, or fine, etc., -- but such could be argued to constitute waiver by the defendant of the position that the plaintiffs have to maintain a facial challenge based on their failure to exhaust, insofar as – if the defendants are allowed to prove the content of the dollar figure, they are looking beyond the four corners of the pleadings and the ordinance, and figure, and yet forcing the plaintiff to live within them.

"On the other hand, if nothing outside the pleadings is available, the parties are left with whatever label the legislature tags on the ordinance even if at odds with its underlying structure, purpose, and effect."

Chapman also wrote that if there is a challenge by motion looking outside the plaintiff's pleadings, it would tend to suggest the parties have "left a facial challenge behind."

"In People v. One 1998 GMS (where the plaintiffs challenged a statute calling for vehicle forfeiture following arrests for aggravated driving under influence of alcohol (DUI), driving while license revoked, and other qualifying offenses) the court went far in addressing this, and the court found the State mistaken where it had argued that a motion to dismiss brought pursuant to section 2-619(a)(9) can never be a proper tool to facially challenge the due process constitutionality of a statute.

"But the court there did not have at issue a case where the essential nature of the statute is likely to be in question. Even without the facial/as applied complication, 2-619 is for matters outside the complaint (e.g. failure to exhaust) and is not properly used to attack the factual basis of a plaintiff's claim."

Chapman's order to dismiss states the cases should be re-pleaded within 30 days.

Madison County Circuit Court cases 11-L-1304, 11-L-1305, 11-L-1306, 11-L-1307.

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