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Thursday, July 10, 2014 12:01 am

City wins lawsuit

Towing fee upheld by judge

 The city of Springfield has prevailed in a lawsuit brought by Calvin Christian, who had claimed that the city’s towing-fee ordinance was unconstitutional.

Christian sued after he was arrested more than two years ago by city police who reported that he came to their attention by playing his car stereo at excessive volume. He was arrested on suspicion of reckless driving, driving without a license, driving without insurance and resisting police when he did not obey a direction to stay put and instead pulled away and stopped a short distance away in a manner that forced nearby pedestrians to move quickly out of his way, according to a police report. Court files also show a charge of fleeing or attempting to elude police.

Christian this year pleaded guilty to the most serious charges, reckless driving and fleeing or attempting to elude police; the less serious charges remain pending,  with pretrial hearings set for next month. Christian, who has received more than 100 tickets since 2010, including at least 18 this year, has sued the city in federal court, claiming that police are harassing him for requesting internal affairs files.

The federal lawsuit is pending, but Christian last month lost a lawsuit in state court, where he had claimed that the ordinance under which the city towed his car was unconstitutional. At the time, the city charged motorists arrested for certain offenses a towing fee of $500, which was lowered last year to $250. The fee was on top of charges levied by towing companies for impounding and storage services.

Christian had claimed that charging the fee amounted to unreasonable search and seizure and that the ordinance was overly vague. He also argued that motorists charged the fee were deprived of rights to jury trials and that fees charged on top of penalties for underlying offenses amounted to double jeopardy.

Not so, ruled Sangamon County Circuit Court Judge Pete Cavanagh in a June 11 dismissal order.

In dismissing the case, Cavanagh noted that Sangamon County Circuit Court Judge John Schmidt last year dismissed a similar lawsuit brought by Derek Fulton, whose car was towed after he was arrested on suspicion of driving under the influence. Fulton had sought class-action status for the lawsuit dismissed by Schmidt.

“This is specious,” Cavanagh wrote in dismissing Christian’s lawsuit handled by Donald Birner, the same Pekin attorney who had represented Fulton. “Plaintiffs have articulated no legal or factual argument that the circumstances pled in this case are materially different from those asserted in Fulton. Indeed, had the Fulton case been certified as a class action, plaintiffs certainly would have been members of the class.”

Cavanagh in his decision quoted from the 2013 ruling by Schmidt, who found that the towing charge was a fee, not a fine, even at the $500 level.

“The court finds the $500 fee to be a reasonable fee given the expense the city incurs in the arrest and detention of the impounded vehicle’s driver,” Schmidt wrote in his ruling. “Further, the city must care for the impounded vehicle and insure (sic) its safety. All these requirements cost money. … The $500 fee is not so high as to be strictly punitive in nature.”

The fee had generated at least $1.3 million for the city since 2010 before the city council last year lowered it to $250. Mayor Mike Houston vetoed the ordinance reducing the fee, but his veto was overrriden.

The mayor had cast it as a safety issue, saying that most motorists whose cars were towed had been arrested on suspicion of drunken driving or driving without licenses and so therefore posed a danger to the public. But the council stood firm, saying that $500 was too much.

“I think it was the right thing to do for a whole number of issues,” said Ward 7 Ald. Joe McMenamin, who had pushed to lower the fee.

Citizens who could not afford the $500 fee were forfeiting more than 50 vehicles a year, McMenamin said, and some of those vehicles were owned by people who were not driving.

“The accumulation of the impoundment fees together with the towing fee together with the storage fee together with the underlying offense that triggered the impoundment, all added together, often resulted in the loss of the vehicle for individuals and families that may not have been involved with the underlying offense,” the alderman said.

Birner, Christian’s lawyer, said that he is appealing Cavanagh’s decision because he did not learn that Schmidt had dismissed Fulton’s earlier case until after the period for filing an appeal had passed. He said that he believes that both judges did not properly address Fourth Amendment questions and that motorists should have the right to appeal to a judge or jury, not a city hearings officer.

“Our position is, frankly, the city of Springfield nor any municipality can deny your constitutional Fourth Amendment right regarding the reasonableness of search and seizure,” Birner said.

Contact Bruce Rushton at brushton@illinoistimes.com.

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