Baker v. City of Iowa City , 1977 Iowa Sup. LEXIS 969 ( 1977 )

REES, Justice

(dissenting).

I respectfully dissent.

Plaintiff Baker asserted, and the trial court held, the ordinance was constitutionally infirm. The Denver Boot was placed on plaintiff’s car without notice being given to him that his car was going to be impounded. Plaintiff claimed successfully in the trial court that the ordinance violated due process of law since no preseizure or preimpoundment notice was given that the Denver Boot was to be placed on his car.

The defendant City claims the ordinance did not violate due process of law since an attempt was made to ascertain the plaintiff’s residence and to give him notice of a judicial proceedings for the collection of outstanding traffic tickets, and that the Denver Boot was placed on a car like the plaintiff’s only where the owner’s residence was difficult to ascertain.

Even though Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), held that a creditor could not seize a debtor’s property under summary governmental procedure that was used in that case, the court gave the standard for the government’s seizure of property without notice in emergency situations, and said:

“Only in a few limited situations has this court allowed outright seizure without opportunity for a prior hearing. First, in each case, the seizure has been directly necessary to secure an important governmental or general public interest. Second, there has been a special need for very prompt action. Third, the State has kept strict control over its monopoly of legitimate force: the person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance.”

See 407 U.S. at 90-91, 92 S.Ct. at 1999-2000, 32 L.Ed.2d at 576.

The three-prong Fuentes test above set out has been applied to the impoundment of vehicles for violation of parking ordinances and in the case of abandoned vehicles. Remm v. Landrieu, 418 F.Supp. 542, 545 (E.D.La.1976); Bricker v. Craven, 391 F.Supp. 601, 604-607 (Mass.1975); Graff v. Nicholl, 370 F.Supp. 974, 982 (N.D.Ill.1974). Although the loss of the automobile was temporary, it was considered a “grievous loss” requiring notice in ordinary circumstances before the car could be seized. Remm v. Landrieu, 418 F.Supp. at 545; Graff v. Nicholl, 370 F.Supp. at 981. In those cases, however, the courts said they would allow seizures of automobiles without notice in emergency situations as defined by the Fuentes test. Those courts concluded that the traffic problems caused by the use of motor vehicles in cities created an important interest of the local government in the prompt seizure and removal of cars in violation of parking regulations designed to correct the problems and eliminate traffic hazards in certain situations. Remm v. Landrieu, 418 F.Supp. at 545; Bricker v. Graven, 391 F.Supp. at 604-605. Since the government would, in such instances, have exclusive control over the use of force in impounding automobiles, the Fuentes test would be satisfied and would permit the seizure of automobiles in such situations without notice.

Applying the Fuentes test to the factual situation in this case, I would hold the Fuentes requirements for seizure without notice are not satisfied by ordinance No. 2558. It is obvious the City of Iowa City has an important governmental interest in enforcing its parking regulations, and ordinance No. 2558 affords the City as the local government a strict monopoly on the force used. However, there is no apparent need for the defendant City to employ prompt seizure proceedings by restraining the ear by the use of the Denver Boot. A prompt seizure might be justified in order to enforce the parking ordinance against an out-of-state violator (see Bricker, 391 F.Supp. at 603-604), or to provide for the public safety (Remm, 418 F.Supp. at 545). There was no indication Baker was an out-of-state resident whom it would have been difficult to locate. Since it was possible for the city authorities to identify Baker from the car registration records there was no justification for a prompt seizure of the car since the owner could be brought into court by regular judicial process by the service of a summons.

There was no showing in the record that the use of the Denver Boot was justified for any public safety reason and, in fact, its use indicated there was no need for the prompt removal of the car in order to protect the public since the Boot immobilized the car at the spot where the parking violation occurred. Since there was no need for prompt action to enforce traffic regulations, as required by the Fuentes test in order to justify a seizure without notice, I adhere to the view the ordinance is unconstitutional both on its face and as applied to this case. In my judgment, the use of the Denver Boot violates due process of law by authorizing the seizure of an automobile without notice. I would hold the ordinance is unconstitutional, and, as a consequence of its constitutional infirmities, an unreasonable exercise of the police power of the City.

I would affirm the trial court.

MOORE, C. J., joins this dissent.