Bivens v. Salt Lake City Corp.

This opinion is subject to revision before final
publication in the Pacific Reporter
2017 UT 67IN THE
SUPREME COURT OF THE STATE OF UTAH
TIMOTHY BIVENS, MICHELLE REED, and ANTHONY ARIAS,
Appellants,
v.
SALT LAKE CITY CORPORATION, MAYOR RALPH BECKER,
and SALT LAKE CITY COUNCIL,
Appellees.
No. 20150249
Filed September 26, 2017
On Direct Appeal
Third District, Salt Lake
The Honorable Robert P. Faust
No. 140904155
Attorneys:
R. Shane Johnson, Mark S. Schwarz, Bruce R. Baird,
Salt Lake City, for appellants
Margaret D. Plane, Salt Lake City, for appellees
JUSTICE HIMONAS authored the opinion of the Court in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE DURHAM, and JUSTICE PEARCE joined.
JUSTICE HIMONAS, opinion of the Court:
INTRODUCTION
¶ 1 About six years ago, the tech revolution reached Salt
Lake City’s parking meter infrastructure. In response, the City
switched from Industrial-era, coin-operated, single-space parking
meters (where each parking space had its own meter) to a
postindustrial system of multi-space, credit-card-ready parking
BIVENS v. SALT LAKE CITY
Opinion of the Court
pay stations. But the City did not immediately update its code to
reflect this change. Instead, until the middle of 2014, Salt Lake
City Code defined a parking infraction by reference to the old
meters:
No person shall park any vehicle in any parking
meter space . . . without immediately depositing in
the parking meter contiguous to the space such
lawful coin or coins of the United States as are
required for such meter and designated by
directions on the meter . . . .
SALT LAKE CITY CODE § 12.56.150(B) (2010) (amended 2014).
¶ 2 And it described a “parking meter” as a machine
designed so
that the deposit of a coin or coins will set the
mechanism of the meter in motion . . . so that the
meter will show the unexpired parking time
applicable to the parking meter space contiguous to
the meter, and the meter, when such parking time
has expired, shall so indicate by a visible sign.
Id. § 12.56.150(A).
¶ 3 The plaintiffs in this putative class action lawsuit—
Timothy Bivens, Anthony Arias, and Michelle Reed—all received
parking tickets between 2011 and 2014, when the City had already
installed pay stations but still defined parking infractions by
reference to parking meters. But, with one exception, the plaintiffs
did not challenge their parking tickets. Instead, they paid their
fines. They then sued the City, alleging two claims. First, they
alleged that the City unjustly enriched itself by fining them for
failing to use a parking meter at a time when there were no longer
any parking meters in Salt Lake City—only pay stations—but the
City had not yet proscribed parking without paying at a pay
station. Second, they alleged due process violations: (1) the City
failed to give adequate notice of the procedures for challenging
parking violations, (2) a provision of the City Code “requiring
assessment of an attorney fee in enforcement actions conflict[s]
with state law, and [is] thus unenforceable,” and (3) the City
created a quasi-judicial process—“hearing officers” located in the
City’s Finance Division—for challenging parking violations that
the City Code did not authorize.
2
Cite as: 2017 UT 67Opinion of the Court
¶ 4 We conclude the plaintiffs have failed to state a claim
that the City’s notices violated due process. Although they
contained misstatements that trouble us, they were sufficient to
apprise the plaintiffs of both their right to challenge their parking
tickets and their opportunity for a hearing on that challenge. And
this holding is fatal to the plaintiffs’ equitable enrichment claim as
well as their due process challenge to the attorney fees assessment
provision of the City Code. Because the plaintiffs had adequate
notice of their right to challenge their parking tickets—including
their right to argue that they had not committed any offense
defined in the City Code—it was incumbent on them to pursue
that challenge through the available procedures for contesting a
parking ticket. But, with one exception, the allegations reflect that
the plaintiffs did not exhaust their legal remedies before seeking
to challenge their tickets through an equitable action.1 Because of
this, the plaintiffs have waived any challenge to the attorney fees
provision, and they have also failed to state an equitable
enrichment claim.
¶ 5 Accordingly, because the plaintiffs have failed to state
any claims, we affirm the district court’s dismissal of the
plaintiffs’ suit.
BACKGROUND
¶ 6 Because this is an appeal from dismissal under rule
12(b)(6) of the Utah Rules of Civil Procedure, we accept all of the
plaintiffs’ allegations as true and draw all reasonable inferences in
their favor. See Hudgens v. Prosper, Inc., 2010 UT 68, ¶ 2, 243 P.3d
1275; Brown v. Div. of Water Rights, 2010 UT 14, ¶ 10, 228 P.3d 747.
¶ 7 Between 2011 and 2014, Timothy Bivens, Anthony Arias,
and Michelle Reed all received tickets for failing to pay to park.
Each of their parking tickets stated they owed a fine of $15. The
tickets further stated this fine would increase if it was not timely
paid: if the motorists waited until after ten days had elapsed, but
1 The one exception is Mr. Bivens, who may have challenged
one of his tickets by arguing that the ordinance did not proscribe
parking without paying at a pay station. But Mr. Bivens won this
challenge on unrelated grounds, and he did not challenge any of
his other tickets.
3
BIVENS v. SALT LAKE CITY
Opinion of the Court
paid within 11 to 20 days, they would owe $55; 21 to 30 days, $85;
and 31 to 40 days, $125. The tickets also provided a phone number
and email address to obtain additional information, and they,
albeit somewhat misleadingly, explained how motorists could
contest their tickets: “To discuss your Parking Notice, you must
see the Hearing Officer in person within 10 calendar days from
the date of this notice at the Salt Lake City & County Building at
451 South State Street, Room 145.” (In fact, a motorist has twenty
days to challenge a ticket, not just ten.)
¶ 8 Only two of the plaintiffs—Mr. Bivens and Ms. Reed—
attempted to challenge a ticket. In keeping with the instructions
on their tickets, they both contacted a hearing officer to discuss
whether their ticket was valid. In each case, the hearing officer
determined their challenge was meritless and provided them with
a “Small Claims Court Information” document.
¶ 9 The Small Claims Court Information document stated
that the next step in a challenge to a parking ticket was to appear
in small claims court. It further stated that the small claims court
judge would “only hear evidence regarding your parking/civil
notice and related violation.” By contrast, “[i]f your complaint is
regarding a problem with the way an area is marked, whether or
not you feel the ordinance is valid and should be changed or how
you were treated by the issuing officer, the courtroom is not the
proper place for those types of complaints and [they] will not be
addressed by the judge.” The Small Claims Court Information
document warned that, in the event the judge found in favor of
the City, the court might impose a filing fee and up to $175 of
attorney fees. It also warned that “[a] judgment will appear on
your credit report and will affect your credit rating for 8 years.”
¶ 10 Like the tickets, the Small Claims Court Information
document contained misstatements and omissions. Even though,
at the time, parties had up to thirty days following entry of a
small claims judgment to appeal, the document stated that
“[e]ither party may appeal a small claims judgment within 10
days after the Notice of Entry of Judgment is received by the
losing party.” See UTAH CODE § 78A-8-106(1) (2015).2 Both the
2 The statute has since been amended. It now provides that
“[e]ither party may appeal the judgment in a small claims action
(cont.)
4
Cite as: 2017 UT 67Opinion of the Court
tickets and the Small Claims Court Information document also
failed to inform their recipients of their legal right to seek a
hearing in justice court as an alternative to appearing before a
hearing officer or as a defendant in small claims court.
¶ 11 Mr. Bivens and Ms. Reed pursued different courses of
action after receiving the Small Claims Court Information
document. According to the amended complaint, Ms. Reed
“considered challenging the notice in small claims court, but
ultimately opted against risking the additional expenses outlined
in the Small Claims Court Information document.” She
“ultimately paid the notice 16 days after receiving it, and the City
increased the fine amount to $55 in that time.”
¶ 12 Mr. Bivens, by contrast, retained an attorney to challenge
his ticket. According to the amended complaint, the attorney
“challenged the validity of the ordinance, but the small claims
case was decided in Bivens’ favor on unrelated grounds.” When
Mr. Bivens received subsequent, additional parking tickets, he
“opted to simply pay the fines for subsequent notices rather than
invest significant additional time, risk incurring exorbitant costs if
he should not prevail, and risk the possibility of having his
vehicle towed or immobilized if he receive[d] an additional notice
in the meantime.”
¶ 13 Thus, with the exception of Mr. Bivens’s one successful
challenge, none of the plaintiffs in this lawsuit sought to avail
themselves of the procedures outlined on their ticket and in the
Small Claims Court Information document. Nonetheless, the
plaintiffs have now filed a putative class action lawsuit, seeking to
recoup all costs associated with parking violations between 2011
(when the rollover from parking meters to pay stations was
completed) and 2014 (when the City Code was updated to reflect
that change).
¶ 14 The plaintiffs’ lawsuit centers on two related problems
with the City’s approach to parking violations during the putative
class period. First, the plaintiffs allege an “unjust
enrichment/equitable refund” count against the City. According
to the district court of the county by filing a notice of appeal in the
original trial court within 28 days of entry of the judgment.” UTAH
CODE § 78A-8-106(1).
5
BIVENS v. SALT LAKE CITY
Opinion of the Court
to the plaintiffs, between 2011 and 2014, the City continually fined
motorists for failing to pay for parking at parking meters, even
though the City had replaced all parking meters with pay stations.
But, according to the plaintiffs, when the City replaced the
parking meters with pay stations, parking without paying ceased
to be an infraction. This is because until 2014, the City Code only
required motorists to “immediately deposit[] in the parking meter
contiguous to the [parking] space such lawful coin or coins of the
United States as are required for such meter and designated by
directions on the meter.” SALT LAKE CITY CODE § 12.56.150(B)
(2010) (amended 2014). It further defined a “parking meter” as a
mechanical device that is “immediately contiguous to a parking
meter space” and “indicates unexpired parking time for the
adjacent parked vehicle.” Id. § 12.56.140(A). And it described the
parking meter as a machine designed so
that the deposit of a coin or coins will set the
mechanism of the meter in motion or permit the
mechanism to be set in motion, so that the meter will
show the unexpired parking time applicable to the
parking meter space contiguous to the meter, and
the meter, when such parking time has expired,
shall so indicate by a visible sign.
Id. § 12.56.150(A).
¶ 15 According to the plaintiffs, while the old parking meters
are covered by this definition, the new pay stations are not. The
new pay stations are not “immediately contiguous to a parking
meter space”; instead, they control multiple parking spaces per
block. They also do not “indicate[] unexpired parking time for
[any] adjacent parked vehicle[s].” Nor do they indicate when the
time has expired. And they are not mechanical devices that are
“set in motion” by the deposit of coins; instead, they are electrical
pay stations.
¶ 16 In short, the City Code made it an infraction not to pay
at a mechanical, single-space, coin-operated parking meter; once
Salt Lake City replaced all of its mechanical, single-space coin-
operated parking meters with electrical, multi-space pay stations
that take credit cards, that infraction ceased to apply to any
possible facts on the ground. While even the least astute observer
could well infer that the pay stations were supposed to serve the
same function as the parking meters they replaced—i.e., motorists
6
Cite as: 2017 UT 67Opinion of the Court
were supposed to pay for parking at the pay stations—the
plaintiffs’ theory is that this architectural obviousness is not
enough. Instead, because failure to pay for parking at a pay
station was not a Code infraction, the plaintiffs argue, the City’s
fines between 2011 and 2014 were unlawful.
¶ 17 Compounding the unjust-enrichment problem,
according to the plaintiffs, was the City’s failure to respect
motorists’ due process rights under the Utah Constitution. The
plaintiffs allege that the combination of the City’s parking tickets
and Small Claims Court Information document operated to
mislead motorists about:
 the available procedures for challenging parking
tickets (tickets state only that motorists must see a
“Hearing Officer” when in fact they also have the
power to request a hearing in justice court);
 the full time period within which motorists may
mount a challenge and appeal an adverse
determination (tickets state that motorists must see
a hearing officer within ten days, when in fact they
have twenty days, and the Small Claims Court
Information document states that motorists must
file a notice of appeal from an adverse
determination within ten days, when in fact they
had thirty days);
 the circumstances under which late-penalty
increases will be stayed (tickets state that penalties
increase before the time within which a motorist
may seek a hearing has elapsed, and they do not
indicate that late-penalty increases are stayed once
a hearing is requested);
 “the potential and actual consequences of
contesting citations” (the Small Claims Court
Information document emphasizes the risks of
contesting a ticket in small claims court, stating
that the City will be represented by the city
prosecutor, that the Court may impose filing and
attorney fees on a motorist who loses a challenge,
and that a judgment may negatively affect a
motorist’s credit rating for eight years).
7
BIVENS v. SALT LAKE CITY
Opinion of the Court
¶ 18 The plaintiffs also allege that the Small Claims Court
Information document misleads motorists about the bases on
which they may challenge their tickets, declaring that “[t]he judge
will only hear evidence regarding your parking/civil notice and
related violation” and that
[i]f your complaint is regarding . . . whether or not
you feel the ordinance is valid and should be
changed . . . the courtroom is not the proper place
for those types of complaints and will not be
addressed by the judge.
¶ 19 Finally, the plaintiffs contend that the City has provided
unlawful procedures for challenging parking tickets: the City
Code requires “assessment of an attorney fee in enforcement
actions [in] conflict with state law,” and the City has located its
Hearing Officers in the Finance Department, when they are
supposed to be in justice court.
¶ 20 On behalf of themselves and members of a putative
class, the plaintiffs sought a declaration that the City’s parking
fine scheme was unlawful and an injunction ordering a stop to
enforcement of parking ordinances until the City updated its
Code and fixed the notice problems with the tickets and Small
Claims Court Information document. They also sought a refund of
what they claimed was illicitly acquired parking ticket revenue,
parking pay station revenue, and related collection costs, court
filing fees, and attorney fees.
¶ 21 The City then moved to dismiss. Among other things, it
argued that the plaintiffs’ due process claim should be dismissed
because the notice the plaintiffs received was constitutionally
adequate. It also argued that the plaintiffs could not pursue an
unjust enrichment claim because they had failed to pursue their
available legal remedy—directly challenging their parking
tickets—and, relatedly, that they could not challenge the
underlying procedures for contesting their tickets because they
had not sought to challenge those procedures before the hearing
officer, justice court, or small claims court below.
¶ 22 After the district court granted the City’s motion, the
plaintiffs appealed. Utah Code section 78A-3-102(3)(j) gives us
jurisdiction.
8
Cite as: 2017 UT 67Opinion of the Court
ANALYSIS
¶ 23 We are concerned by the misstatements and omissions
contained in the parking ticket and the Small Claims Court
Information document. The parking ticket affirmatively misleads
motorists about the timeframe for challenging a parking
infraction, stating that motorists have ten days to appear before a
hearing officer, when, in fact, the law gives them twenty days in
which to challenge a ticket. For its part, the Small Claims Court
Information document misleads by omission. It tells motorists
who wish to challenge the hearing officer’s determination that
their recourse is to contest the ticket in small claims court. It does
not inform them that they may seek a hearing in justice court to
contest their ticket. Like the ticket, it is also misleading with
respect to the timeframe for taking legal action—stating that a
motorist has ten days in which to appeal when in fact litigants at
the time in small claims court actions had thirty days in which to
file a notice of appeal. Supra ¶ 10 & n.2.
¶ 24 Despite these misstatements and omissions, we are
nonetheless constrained to affirm the district court’s dismissal of
the plaintiffs’ lawsuit. As a matter of law, the plaintiffs allegations
fail to support their claim that the parking ticket and Small Claims
Court Information document’s misstatements—concerning
though they are—deprived them of constitutionally adequate
notice. This is fatal to their lawsuit. Because the plaintiffs received
constitutionally adequate notice, their failure to exercise their
right to contest their tickets means that they have waived any due
process challenge to any procedures that the City might have
applied in those proceedings. Moreover, because the plaintiffs did
not avail themselves of their legal right to challenge their parking
tickets—other than in one instance where Mr. Bivens challenged
his ticket and won—they may not bring an equitable action
(including an unjust enrichment claim) to recoup the fines and
costs they paid in connection with their parking violations.
I. THE AMENDED COMPLAINT FAILS TO STATE
A PROCEDURAL DUE PROCESS CLAIM FOR
INADEQUATE NOTICE UNDER ARTICLE I,
SECTION 7 OF THE UTAH CONSTITUTION
¶ 25 The plaintiffs’ constitutional claims are asserted under
the Utah Constitution. Article I, section 7 of our constitution
provides that “[n]o person shall be deprived of life, liberty or
9
BIVENS v. SALT LAKE CITY
Opinion of the Court
property, without due process of law.” Central to our
constitution’s conception of due process of law is timely and
adequate notice and an opportunity to be heard. Nelson v. Jacobsen,
669 P.2d 1207, 1211 (Utah 1983) (“Timely and adequate notice and
an opportunity to be heard in a meaningful way are the very heart
of procedural fairness.”). But there are no hard-and-fast rules for
what counts as constitutionally adequate notice. “Due process is
not a technical conception with a fixed content unrelated to time,
place, and circumstances.” Worrall v. Ogden City Fire Dep’t, 616
P.2d 598, 602 (Utah 1980). Instead, “[d]ue process is flexible and
calls for the procedural protections that the given situation
demands.” Labrum v. Utah State Bd. of Pardons, 870 P.2d 902, 911
(Utah 1993) (citation omitted).
¶ 26 At the heart of the plaintiffs’ due process claim is the
constitutional adequacy of the notice that the plaintiffs received.
When we assess the adequacy of notice under the due process
provision, the core question that we seek to answer is whether
that notice is “reasonably calculated, under all the circumstances,
to apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections.” Jackson
Constr. Co. v. Marrs, 2004 UT 89, ¶ 10, 100 P.3d 1211 (quoting
Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950)).
“The notice must be of such nature as reasonably to convey the
required information, and it must afford a reasonable time for
those interested to make their appearance.” Salt Lake City Corp. v.
Jordan River Restoration Network, 2012 UT 84, ¶ 53, 299 P.3d 990(quoting Mullane, 339 U.S. at 314). In sum, “[a] plaintiff [is]
entitled to have . . . essential information imparted to him.”
McBride v. Utah State Bar, 2010 UT 60, ¶ 17, 242 P.3d 769(alterations in original) (citation omitted).
¶ 27 The parking ticket and Small Claims Court Information
document are troublingly misleading. The parking ticket tells
motorists that they have only ten days to set up an appointment
with a hearing officer to “discuss” the propriety of their parking
ticket, when in fact the City Code gives them twenty days to
challenge their tickets. The parking ticket also fails to inform
motorists that they may bypass the hearing officer process and,
instead, challenge their tickets directly in justice court. And,
according to the plaintiffs, it suggests both that late penalties
compound at a more rapid rate than they in fact do and that
10
Cite as: 2017 UT 67Opinion of the Court
penalties continue to compound even as a motorist challenges his
or her ticket. While we see more ambiguity than the plaintiffs do
on some of these points, as we explain, we are still troubled by the
extent to which the parking tickets are misleading.
¶ 28 A motorist who follows the instructions on a parking
ticket, sets up a hearing, and loses before a hearing officer will
then be given a Small Claims Court Information document. Based
on the plaintiffs’ pleadings, this document has its own set of
problems. It implies that a motorist’s only recourse from an
adverse determination before a hearing officer is to contest the
ticket in small claims court, when a motorist may also opt to
challenge his or her parking ticket in justice court. It implies that a
motorist must file a notice of appeal from small claims court
within ten days of an adverse determination, when, at the time
this suit was litigated, he or she had thirty days in which to file
this document. And it emphasizes—in the plaintiffs’ view, unduly
emphasizes—some of the potential consequences of contesting a
parking ticket in small claims court: high court costs, attorney
fees, and a blow to one’s credit score. It also states that motorists
are limited in the legal grounds on which they may challenge
their parking tickets:
The judge will only hear evidence regarding
your parking/civil notice and related violation . . . .
If your complaint is regarding . . . whether or not
you feel the ordinance is valid and should be
changed . . . the courtroom is not the proper place
for those types of complaints and will not be
addressed by the judge.
¶ 29 As we have said, we are troubled by the misleading
statements on the parking ticket and in the Small Claims Court
Information document. We share the plaintiffs’ concern that the
City’s notices may have the effect of inducing payment of parking
fines irrespective of whether a motorist has a good-faith basis for
contesting those fines. This is not in keeping with norms of good
governance.
¶ 30 Despite our concerns, we nonetheless affirm the district
court’s dismissal of the plaintiffs’ procedural due process claim.
Not every failure of government rises to the level of a due process
violation. As we have explained, the core question in any due
process challenge to the adequacy of notice is not whether the
11
BIVENS v. SALT LAKE CITY
Opinion of the Court
notice is a model of clarity and good governance, but whether it
reasonably apprises the prospective litigant of the “essential
information” she needs to assert her rights. McBride, 2010 UT 60,
¶ 17. This is not a question we answer in the abstract; instead, we
ask whether the notice is “reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the
action and afford them an opportunity to present their
objections.” Jackson Constr. Co., 2004 UT 89, ¶ 10 (emphasis
added). Under the circumstances alleged in the plaintiffs’
complaint, both the parking ticket and the Small Claims Court
Information document gave constitutionally adequate notice to
the plaintiffs of their right to a hearing.
A. The Parking Ticket
¶ 31 With respect to the parking ticket, the crux of the
plaintiffs’ complaint is that the ticket was misleading in three
respects: (1) it erroneously told them they had ten calendar days
to schedule a hearing to challenge their parking tickets—when in
fact they had twenty days, (2) it misleadingly suggested late-
penalties compound at a faster rate than they actually do, and
(3) it failed to notify them of their right to seek a hearing in justice
court instead of appearing before a hearing officer.
¶ 32 We agree that the statement that the plaintiffs have only
ten calendar days to schedule a hearing was misleading. But to
have violated the plaintiffs’ due process right to notice, that
misstatement must have misled them in such a way that they
were effectively deprived of the opportunity for a hearing. See
Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 13 (1978) (core
due process purpose of notice is “to apprise interested parties of
the pendency of the action and afford them an opportunity to
present their objections” (quoting Mullane, 339 U.S. at 314)).
Under the circumstances of this case, this misstatement does not
rise to that level. This is because the plaintiffs’ allegations do not
reflect that they suffered prejudice as a result of only having ten
days in which to challenge their parking tickets. Nowhere in the
plaintiffs’ complaint do they aver that they forewent their
hearings because of the ten-day time limit. Disputing a parking
ticket is typically a simple matter that requires virtually no factual
investigation or development, and no plaintiff alleges that ten
days was inadequate time to adequately prepare a litigation
strategy. Cf. Lindsey v. Normet, 405 U.S. 56, 64–65 (1972)
12
Cite as: 2017 UT 67Opinion of the Court
(upholding landlord-tenant legal regime against challenge that it
provides “an unduly short time for trial preparation”—no more
than six days, absent the tenant’s posting a bond—where factual
and legal issues are simple and each party has “as much access to
relevant facts” as the other). Nor do any of the plaintiffs allege
that ten days was not enough time for them to arrange their
affairs in such a way that they could appear and contest the ticket.
We therefore cannot find a deprivation of due process based on
the misleading statement that the plaintiffs had ten, instead of
twenty, days to challenge their tickets.
¶ 33 The plaintiffs also suggest that, because the notice
misleadingly implied late penalties compound at a faster rate than
they otherwise do—and failed to notify plaintiffs of their right to
ask for a stay of penalty increases pending resolution of a parking
case—they were deterred from pursuing a hearing by the
prospect of escalating fines. It is, of course, inappropriate to
mislead motorists about the penalties associated with an
infraction. But to the extent the notice did contain misleading
information about penalties, those misleading statements do not
rise to the level of a due process violation because they did not
sow confusion about the plaintiffs’ right to contest their parking
tickets at a hearing.
¶ 34 First, while they were clearly misleading in other
respects, we do not believe that the parking tickets contained
obviously misleading information about the schedule of penalties.
Instead, the structure of the parking ticket’s text reflected that
penalties would only increase in the event that a motorist both
declined to timely pay and failed to take steps to challenge his or
her ticket.3
3 We note the plaintiffs have alleged that Ms. Reed was
assessed a penalty when she paid her parking ticket fourteen days
after receiving her ticket—even though she also challenged her
ticket before the hearing officer. Supra ¶ 11. This suggests to us
that the City may not have stayed the imposition of a penalty
while Ms. Reed was engaged in the process of challenging her
ticket. If true, this is not acceptable. See SALT LAKE CITY CODE
§ 2.75.030(E) (2010) (amended 2014) (All penalties “are stayed
upon filing the request for hearing[] until judgment is rendered in
(cont.)
13
BIVENS v. SALT LAKE CITY
Opinion of the Court
¶ 35 The back side of the parking ticket began with a
prefatory clause stating that the vehicle had “been observed in
violation of . . . the Salt Lake City Code.” It explained that this
violation subjected the motorist to “a civil penalty” and that
“[f]ailure to pay the penalty may result in the filing of a SMALL
CLAIMS COURT ACTION and increased penalties.” (Emphasis
added.) The parking ticket then laid out two options for motorists.
First, they could pay: “[t]o satisfy the Parking Notice, send
payment in the amount indicated on the front of this Parking
Notice within ten (10) calendar days.” The parking ticket reflected
that if a motorist chose payment as an option, but failed to pay
timely, “[p]enalties will increase as follows”—followed by the
schedule of penalties of which the plaintiffs in this case complain.
It further stated that “partial payment will not clear this notice.”
¶ 36 The second option available to motorists was a
“hearing[].” The parking ticket reflected that if a motorist chose
this option, he or she “must see the Hearing Officer in person
within 10 calendar days from the date of this notice.” It then
provided the telephone number to call for more information.
¶ 37 Read as a whole, therefore, the parking ticket did not
obviously suggest that penalties would increase even if a motorist
chose to pursue a hearing. The statement that penalties “will
increase” fell under the “payment” option and therefore appeared
only to cover motorists who chose to pay their parking fines but
did not pay them timely. It did not cover motorists who chose a
hearing.
¶ 38 Additionally, even if the parking tickets could have been
written more clearly, our conclusion that its misstatements do not
rise to the level of a due process violation is bolstered by the fact
that the parking tickets provided the motorists with a number to
call if they were confused or needed more information. That is,
even if the parking tickets were ambiguous about the
circumstances under which fees would increase, the plaintiffs
were provided with a simple means of clarifying the meaning of
the parking tickets. Under the circumstances, this was enough for
constitutional notice purposes.
the matter.”). But it does not bear on the adequacy of the notice
contained on the parking ticket.
14
Cite as: 2017 UT 67Opinion of the Court
¶ 39 Two federal constitutional cases from the Sixth Circuit
help frame this issue. In Herrada v. City of Detroit, 275 F.3d 553(6th Cir. 2001), the plaintiff sued Detroit, claiming that its parking
citations violated her due process rights because they misled her
about the penalties that would be imposed if she failed to timely
pay her parking fine. Id. at 555. The Sixth Circuit disagreed.
“Although the citation and overdue notice might have contained
false and misleading information regarding the penalties for
failure to respond,” the court reasoned, “the citation clearly states
that a hearing is available to contest the City’s allegation that the
vehicle owner committed a parking violation,” and it also
“provide[s] [a] telephone number[] to call for more information.”
Id. at 557. Thus, the court concluded, any misleading information
about penalties did not violate due process because “[t]he City’s
notices were . . . reasonably calculated to inform vehicle owners of
the allegations against them and the procedures available to
obtain a hearing to contest the allegations.” Id.¶ 40 Compare Herrada with Zilba v. City of Port Clinton,
924 F. Supp. 2d 867 (N.D. Ohio 2013)—a post-Herrada case in
which a Sixth Circuit district court concluded that a motorist had
not received adequate notice of his right to challenge his parking
ticket. In Zilba, unlike in Herrada, Port Clinton “provided no
phone number [to call for more information], no indication the
ticket could be challenged, and no indication a recipient could
request further information.” Id. at 884. Indeed, Port Clinton’s
tickets “provide[d] no dates or indications a hearing [was]
available.” Id. at 883. Based on the lack of any semblance of notice,
the Zilba court concluded that the motorist’s due process rights
had been violated.
¶ 41 Like the Sixth Circuit, we find it important that the
parking tickets here both indicated that they could be challenged
and provided a telephone number to call for more information. By
including an explanation that they could be challenged, the
parking tickets accomplished the core due process purpose of
notice: providing adequate notice to the plaintiffs of their right to
be heard. And the phone number meant that any plaintiff who
was confused by the information contained on the parking tickets
had a relatively easy way to acquire more information. See Horn v.
City of Chicago, 860 F.2d 700, 705 (7th Cir. 1988) (holding that
“notice of an opportunity for hearing was constitutionally
15
BIVENS v. SALT LAKE CITY
Opinion of the Court
sufficient” when “[a]ny doubts [about information contained on a
parking ticket] could have been resolved by contacting the
Department of Revenue at the number or address listed” on the
parking ticket); In re Glob. Crossing Sec. & ERISA Litig., 225 F.R.D.
436, 450 (S.D.N.Y. 2004) (finding class notice constitutionally
adequate in part because “the notice provided a toll-free
telephone number to call for more information”). To the extent
any of the plaintiffs were concerned that they would be penalized
for seeking a hearing, the plaintiffs could have called the phone
number on their parking tickets to ask about the possibility of a
stay. But there is no allegation that any of them did so. Under the
circumstances of this case, due process was not offended by the
allegedly misleading statements about the schedule of penalties.
¶ 42 Finally, we do not see constitutional significance in the
parking ticket’s omission of the right to challenge a parking ticket
in justice court as opposed to before a hearing officer. The
plaintiffs have not explained how they believed they were
prejudiced by having to appear before a hearing officer instead of
in justice court. Absent allegations that they reasonably decided to
forfeit their right to be heard based on the requirement that they
appear before a hearing officer, we cannot conclude that the fact
that this forum was a hearing before a “hearing officer” posed a
constitutional problem.4
4 The plaintiffs also passingly suggest that the City may have
violated their due process rights because it located the hearing
officers in the City’s Finance Division. They argue that “the City’s
Finance Department hearing officers acted without statutory
authority and thus lacked jurisdiction to hear parking notice
challenges at all” because, according to the plaintiffs, all hearing
officers must “serve as staff for the justice court”—they should not
be located in the executive branch. Because the plaintiffs have
failed to explain how locating the hearing officers in the Finance
Division deprived them of due process, we do not consider this
claim. Cf. Ward v. Vill. of Monroeville, 409 U.S. 57, 60–61 (1972) (To
show that a hearing process poses a structural conflict of interest,
the plaintiff must allege facts demonstrating that the process is
such as to induce “the average man as a judge to forget the
burden of proof required to convict the defendant, or which might
(cont.)
16
Cite as: 2017 UT 67Opinion of the Court
B. The Small Claims Court Information Document
¶ 43 We likewise conclude that the Small Claims Court
Information document provided constitutionally adequate notice.
The plaintiffs argue that this document was constitutionally
deficient for two reasons: (1) because it misled them into believing
that their only recourse to contest a hearing officer’s adverse
determination was to appear in small claims court—where, if they
did not prevail, they would potentially be exposed to significant
litigation costs and an adverse credit report; and (2) because it
misled them into thinking that they could not argue that the City
ordinances did not apply to their conduct of parking without
paying at pay stations. We address each of these points in turn.
¶ 44 With respect to the plaintiffs’ first contention, we
reiterate that the core requirement of adequate notice is that it
apprise a litigant of her right to a hearing. See Nelson, 669 P.2d at
1211; see also Memphis Light, Gas & Water Div., 436 U.S. at 13. The
Small Claims Court Information document satisfied this core
requirement. And even though it may have overstated the
consequences of failing to prevail in a challenge to a parking
ticket, it did not do so in a way that undermined the plaintiffs’
right to a hearing. Cf. Williams v. Redflex Traffic Sys., Inc., 582 F.3d
617, 621 (6th Cir. 2009) (“[A] notice that offers the ticketed the
choice between paying a $50 fine and having to pay $67.50 to
challenge it offers no choice at all.”). Here, a motorist who chose
to settle instead of proceeding to small claims court would have
concluded that the likelihood of prevailing in small claims court
was not high enough to justify the risk of losing—not that the
choice to proceed to small claims court was, in and of itself,
irrational. This regime does not violate due process. Importantly,
the plaintiffs neither allege nor argue that requiring them to litigate
their parking tickets in small claims court would have violated
their due process rights. And if the plaintiffs accept that small
claims court was a constitutionally adequate forum, it is hard to
see how a notice that only apprises them of their right to litigate
their parking infraction in that forum could have violated their
due process rights. See Amanatullah v. Colorado Bd. of Med. Exam’rs,
187 F.3d 1160, 1164 (10th Cir. 1999) (due process clause requires
lead him not to hold the balance nice, clear, and true between the
state and the accused.” (citation omitted)).
17
BIVENS v. SALT LAKE CITY
Opinion of the Court
“an adequate forum” in which to pursue a claim (emphasis
added)).
¶ 45 The plaintiffs’ second contention is that, even if the Small
Claims Court Information document was sufficient to apprise
them of their general right to a hearing, it was deficient as applied
to this particular case because it told them they were only allowed
to challenge their parking tickets on a limited number of legal
grounds. Specifically, the document stated that
[t]he judge will only hear evidence regarding your
parking/civil notice and related violation . . . . If
your complaint is regarding . . . whether or not you
feel the ordinance is valid and should be changed
. . . the courtroom is not the proper place for those
types of complaints and will not be addressed by the
judge.
¶ 46 According to the plaintiffs, this suggested that they
could not press the argument that forms the basis of their class
action. As the plaintiffs read this portion of the Small Claims
Court Information document, it purports to bar them from
arguing that their conduct of parking without paying at a pay
station was not an infraction under the City Code. The plaintiffs
argue that this created both a notice problem and, by “bar[ring]
challenges to the validity of City ordinances and procedures, their
implementation, and officers’ enforcement actions,” a problem
with the hearing itself.
¶ 47 We are not persuaded that this portion of the Small
Claims Court Information document is necessarily misleading. On
a plausible reading of this portion of the document, it tells
recipients that a small claims court judge will not hear evidence or
arguments regarding “whether or not you feel the ordinance is
valid”—i.e., it tells recipients that they may not challenge the
statutory or constitutional legality of the City Code. But this is not
what the plaintiffs claim they were barred from doing. Instead,
the plaintiffs claim that the Small Claims Court Information
document stated that they were barred from arguing that parking
without paying at a multi-space pay station falls outside the ambit
of the City’s parking ordinances and is therefore not an infraction.
But this is more an argument that the plaintiffs did not violate the
City Code than it is a challenge to the validity of the City’s
parking ordinances. Indeed, the plaintiffs would presumably
18
Cite as: 2017 UT 67Opinion of the Court
agree that the City may validly make it an infraction not to pay for
parking at a coin-operated, single-space parking meter. So we
doubt the plaintiffs’ contention that the Small Claims Court
Information document misleadingly suggested they could not
argue that their conduct was not an infraction under the City
Code.
¶ 48 More importantly, the plaintiffs have not alleged that
they were, in fact, misled by the Small Claims Court Information
document. Quite the contrary. According to the plaintiffs’
complaint, Mr. Arias did not receive this document, so he could
not have been misled by it. See supra ¶ 8. Mr. Bivens, far from
being misled by the document, actually argued to the small claims
court that parking without paying at a pay station did not violate
City Code. See supra ¶ 12. And Ms. Reed decided not to challenge
her ticket in small claims court because she did not want to “risk[]
the additional expenses outlined in the Small Claims Court
Information document”—not because the Small Claims Court
Information document misled her into thinking small claims court
would not entertain a meritorious challenge to her ticket. Thus,
even if there are circumstances in which it is possible to state a
due process violation based on the information contained in the
Small Claims Court Information document, the plaintiffs here
have not alleged that the Small Claims Court Information
document violated their right to adequate notice. See Miller v.
Potter, 198 F. App’x 794, 796 (11th Cir. 2006) (“In order to show
that the notice . . . violated his due process rights, Miller must
show that (1) the notice was defective, and (2) he detrimentally
relied upon that notice.”); Gilbert v. Shalala, 45 F.3d 1391, 1394
(10th Cir. 1995) (“[A] plaintiff must demonstrate reliance on the
allegedly defective . . . notice[].”); Noah v. McDonald, 28 Vet. App.
120, 132 (2016) (“To prevail on his [procedural due process claim]
. . . Mr. Noah must also demonstrate that he relied to his
detriment on the misleading notice.”); see also Monarrez v. Utah
Dep’t of Transp., 2016 UT 10, ¶ 44, 368 P.3d 846 (Although he
alleged a breach of duty, “[the plaintiff] provides no allegations of
any actions taken by the . . . [d]efendants . . . that caused him
harm. Thus, dismissal was proper because the allegations in the
complaint fail to state a claim . . . .”).
¶ 49 We conclude that the plaintiffs received constitutionally
adequate notice of their right to a hearing, and that the plaintiffs
19
BIVENS v. SALT LAKE CITY
Opinion of the Court
have failed to allege that the notice misled them into thinking they
could not raise the basic challenge to the City’s parking regime on
which they have predicated their putative class action lawsuit. To
be sure, the constitutional adequacy of notice is a fact-specific
inquiry, and we will scrutinize notice more carefully as the stakes
rise—because, as the private interest at stake becomes more and
more important, so too does the cost of an erroneous decision. Cf.
Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (adequacy of process
requires courts to balance the private interest that will be affected,
the risk of erroneous deprivation through the procedures used
and the probable value of additional procedures, and the State’s
interest).5 But a $15 parking fine is comparatively low stakes, and
the plaintiffs have failed to state a claim that the notices here did
not adequately apprise them of their right to a hearing on their
objections. The plaintiffs have therefore failed to state a claim for
constitutionally inadequate notice under article I, section 7 of the
Utah Constitution.
II. GIVEN THE CONSTITUTIONALLY ADEQUATE NOTICE
THE PLAINTIFFS RECEIVED, THE PLAINTIFFS
HAVE WAIVED THEIR UNJUST ENRICHMENT
AND ATTORNEY FEES CLAIMS
¶ 50 The remaining claims in this case are the plaintiffs’
unjust enrichment claim and their claim that an attorney fees
provision of the City Code violated their due process rights. But,
given our decision to uphold the district court’s dismissal of the
plaintiffs’ claim that they received constitutionally inadequate
notice of the procedures for challenging parking tickets, these
claims cannot get off the ground.
5 While we do not foreclose the possibility that Utah’s due
process provision incorporates a standard different from the
Mathews test, we note that both parties briefed this case to us on
the assumption that Mathews applies in Utah. This opinion takes
no position on the degree, if any, to which this test is incorporated
in the due process provision of the Utah Constitution. Cf. In re
Baby Girl T., 2012 UT 78, ¶ 17, 298 P.3d 1251; Certified Bldg. Maint.
v. Labor Comm’n, 2012 UT App 240, ¶¶ 17–18, 285 P.3d 831 (citing
Lander v. Indus. Comm’n, 894 P.2d 552, 555–57 (Utah Ct. App.
1995)).
20
Cite as: 2017 UT 67Opinion of the Court
¶ 51 This is because, despite having adequate notice of the
direct legal avenues for challenging their parking tickets, the
plaintiffs did not exhaust their legal remedies. And this failure is
fatal to both their unjust enrichment claim and their additional
procedural due process claim. The doctrine of unjust
enrichment—like other equitable actions—“is designed to provide
an equitable remedy where one does not exist at law.” Am. Towers
Owners Ass’n v. CCI Mech., Inc., 930 P.2d 1182, 1193 (Utah 1996),
abrogated on other grounds by Davencourt at Pilgrims Landing
Homeowners Ass’n v. Davencourt at Pilgrims Landing, LC, 2009 UT
65, 221 P.3d 234. Thus, if remedies for a wrong do exist at law, “[a]
party invoking equity is generally required to first exhaust [the]
legal remedies available.” VCS, Inc. v. Utah Cmty. Bank, 2012 UT
89, ¶ 41, 293 P.3d 290 (internal quotation marks omitted). This is
because “equitable remedies are secondary gap-fillers. They are
aimed at deficiencies left after exhaustion of primary legal
claims.” Id. Accordingly, unless a party has a legitimate excuse for
failing to exhaust available legal remedies, such a failure will
result in forfeiture of that party’s equitable claims.
¶ 52 Similar principles apply when a plaintiff argues that
procedural rules—such as rules governing the apportionment of
attorney fees—violate due process. Before a plaintiff may make
such a claim, he or she must first challenge the application of
those rules in the proceeding to which they apply. A litigant may
not decline to participate in a proceeding on the basis that some of
its procedural rules might not accord with due process and then
challenge that same hearing process on the basis that it violated
the litigant’s due process rights. Cf. Pitts v. Bd. of Educ. of U.S.D.
305, 869 F.2d 555, 557 (10th Cir. 1989) (“By waiving his hearing,
Pitts deprived the school board of the opportunity to provide him
with due process, and he gave up his right to test the correctness
of the board’s decision.”). To allow such a suit to proceed—that is,
to allow litigants to forgo legal process, pay a fine, and then seek
recompense based on speculation that, had they participated in
the underlying lawsuit, their due process rights might have been
violated—would be tantamount to authorizing an impermissible
collateral attack. Cf. State v. Hamilton, 2003 UT 22, ¶ 25, 70 P.3d 111(“With rare exception, when a court with proper jurisdiction
enters a final judgment, including a default judgment, that
judgment can only be attacked on direct appeal.”).
21
BIVENS v. SALT LAKE CITY
Opinion of the Court
¶ 53 These principles are fatal to the plaintiffs’ remaining
claims. This is because—with the exception of Mr. Bivens’s one,
successful challenge to one of his parking tickets—the plaintiffs
did not exhaust their legal remedies. Other than his one successful
challenge, Mr. Bivens never contested any of his parking tickets.
Mr. Arias, likewise, never sought a hearing on his parking tickets.
And, while Ms. Reed did have a friend of hers appear before a
hearing officer to contest her parking ticket, she did not pursue
the matter any further than that.
¶ 54 Because the plaintiffs failed to challenge their parking
tickets before the hearing officers and in small claims court, the
plaintiffs failed to take advantage of available legal remedies for
challenging the imposition of a parking fine. Because of this
failure to exhaust available legal remedies, their unjust
enrichment claims accordingly fail. VCS, Inc., 2012 UT 89, ¶ 41.6
Likewise, because the plaintiffs did not participate in the small
claims court proceeding, the plaintiffs have waived any due
process challenge to the procedures that the small claims court
might, had they participated, have employed. 7
6 We do not hold today that a plaintiff’s complaint must
affirmatively plead exhaustion of legal remedies in order to state
an unjust enrichment claim. Here, the plaintiffs’ own allegations
make out all of the elements of the affirmative defense that the
plaintiffs failed to exhaust their legal remedies. A district court
may dismiss a cause of action under rule 12(b)(6) of the Utah
Rules of Civil Procedure where, as here, “the complaint shows on
its face the existence of an affirmative defense.” Tucker v. State
Farm Mut. Auto. Ins. Co., 2002 UT 54, ¶ 8, 53 P.3d 947 (quoting
Cavanagh v. Cavanagh, 489 N.E.2d 671, 673 (Mass. 1986)).
7 The plaintiffs also claimed they were entitled to recover the
fees they paid to park. In our view, however, if the plaintiffs
believed they were not legally required to pay to park, their
proper recourse was to decline to pay and then challenge any
ticket they received using the procedures outlined on the parking
violation notice and in the Small Claims Court Information
document. There may be circumstances in which we would not
require this procedure. But here, the consequences of refusing to
pay to park are comparatively minor, the costs of challenging a
(cont.)
22
Cite as: 2017 UT 67Opinion of the Court
CONCLUSION
¶ 55 The plaintiffs in this suit seek to state a claim that the
City unjustly enriched itself. They also allege violations of article I,
section 7 of the Utah Constitution, contending that the City
deprived them of constitutionally adequate notice of their rights
to a hearing and set up an unconstitutional hearing process in
connection with the assessment of parking fines.
¶ 56 We first conclude that they failed to state a claim for
inadequate notice under the Utah Constitution. Although the
parking ticket and Small Claims Court Information document
were misleading in certain respects, the plaintiffs have not stated
a claim for constitutionally inadequate notice of their right to
challenge their parking tickets, including their right to argue that
parking without paying at a multi-space pay station was not an
infraction under the former City Code.
¶ 57 Because they received constitutionally adequate notice of
their right to a direct hearing, the plaintiffs do not have a
sufficient excuse for their failure to use that process to challenge
their parking tickets. Their failure to exhaust those available legal
remedies means that they cannot have recourse to equitable
causes of action—such as unjust enrichment—to seek
disgorgement of their fines. Similarly, because they failed to
participate in the available proceedings to challenge their parking
tickets, they cannot now complain that their due process rights
would have been violated by procedural rules that the court
might hypothetically have applied in those proceedings, had the
plaintiffs taken advantage of them.
¶ 58 We affirm the district court’s order dismissing the
plaintiffs’ complaint.
ticket comparatively slight, and there is no well-pleaded
indication that the City was doing anything other than attempting
to provide more efficient services to its citizens. In this
circumstance, if the plaintiffs wanted to claim the City’s parking-
fee scheme is unlawful, it was incumbent upon them to decline to
pay and then challenge the ticket issued to them.
23