EASTERBROOK, Circuit Judge.
The City of Vandalia is fairly small (the population is less than 2500), and apparently its police have maintained informal ways. When Charles Frier parked one of his cars in a narrow street, which forced others to drive on someone else's lawn to get around Frier's car, the police left two notes at Frier's house asking him to move the car. That did not work, so an officer called a local garage, which towed the car back to the garage. The officer left a note, addressed to "Charlie," telling him where he could find the car. The officer did not issue a citation for illegal parking, however; he later testified that he wanted to make it easier for Frier to retrieve the car.
Frier balked at paying the $10 fee the garage wanted. He also balked at keeping his cars out of the street. The police had garages tow four of them in 1983 — a 1963 Ford Falcon, a 1970 Plymouth Duster, a 1971 Opal GT, and a 1971 Dodge van. Instead of paying the garages, Frier filed suits in the courts of Illinois seeking replevin. Each suit named as defendants the City of Vandalia and the garage that had towed the car.
One of the suits (which sought to replevy two cars) was dismissed voluntarily when Frier got his cars back. We do not know whether he paid for the tows and the subsequent daily storage fees or whether the garage thought it cheaper to surrender the cars than to defend the suit. The other two cases were consolidated and litigated. The police testified to the circumstances under which they had called for the tows. The court concluded that the police properly took the cars into the City's possession to remove obstructions to the alley, and it declined to issue the writ of replevin because the City had the right to remove the cars from the street. Frier then retrieved another car;
After losing in state court, Frier turned to federal court. His complaint maintained that the City had not offered him a hearing either before or after it took the cars, and that it is the "official policy" of the City not to do so. The complaint invoked the Due Process Clause of the Fourteenth Amendment and 42 U.S.C. § 1983, and it sought equitable relief in addition to $100,000 in compensatory and $100,000 in punitive damages. The district court, after reviewing the transcript of the replevin action, dismissed the complaint for failure to state a claim on which relief may be granted. (Because the judge considered the transcript he should have treated the motion to dismiss as one for summary judgment. We analyze the decision as if he had done so.) The court found that Frier had
A month is a long wait for a hearing when the subject is an automobile. The automobile is "property" within the meaning of the Due Process Clause, and the City therefore must furnish appropriate process. Sutton v. City of Milwaukee, 672 F.2d 644 (7th Cir.1982), holds that a hearing is not necessary before the police tow a car but suggests that one must be furnished promptly after the tow. Sutton also suggests, in line with many other cases, that the City must establish the process and tender an opportunity for a hearing; it may not sit back and wait for the aggrieved person to file a suit. Compare Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), with Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), and Williamson County Regional Planning Commission v. Hamilton Bank, ___ U.S. ___, 105 S.Ct. 3108, 3122-23 & n. 14, 87 L.Ed.2d 126 (1985).
The City, for its part, maintains that a few isolated tows without hearings are not the "policy" of the City and may not be imputed to it, see City of Oklahoma City v. Tuttle, ___ U.S. ___, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985), and that anyway a month's delay in holding a hearing about seized property is permissible. Cf. United States v. $8,850, 461 U.S. 555, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983), which sustains delay in instituting forfeiture proceedings, and Von Neumann v. United States, 729 F.2d 657 (9th Cir.1984), cert. granted, ___ U.S. ___, 105 S.Ct. 2137, 85 L.Ed.2d 495 (1985), in which the Court has agreed to review a holding that 36 days is too long for the Customs Service to take in reviewing a petition to remit the forfeiture of an automobile.
A court ought not resolve a constitutional dispute unless that is absolutely necessary. Jean v. Nelson, ___ U.S. ___, 105 S.Ct. 2992, 2997-98, 86 L.Ed.2d 664 (1985). Here it is not. Frier had his day in court in the replevin action. The City has argued that this precludes further suits. (The City raised this argument in the motion to dismiss, which is irregular but not fatally so. See Fed.R.Civ.P. 8(c); Lambert v. Conrad, 536 F.2d 1183 (7th Cir.1976).) The district court bypassed this argument because, it believed, Frier could not have asserted his constitutional arguments in a replevin action. This is only partially correct.
Frier could not have obtained punitive damages or declaratory relief in a suit limited to replevin. But he was free to join one count seeking such relief with another seeking replevin. See Welch v. Brunswick Corp., 10 Ill.App.3d 693, 294 N.E.2d 729 (1st Dist.1973), rev'd in part on other grounds, 57 Ill.2d 461, 315 N.E.2d 1 (1974); Hanaman v. Davis, 20 Ill.App.2d 111, 155 N.E.2d 344 (2d Dist.1959), both of which allow one count seeking replevin to be joined with another count seeking different relief. As we show below, the law of Illinois, which under 28 U.S.C. § 1738 governs the preclusive effect to be given to the judgment in the replevin actions, see Marrese v. American Academy of Orthopaedic Surgeons, ___ U.S. ___, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985), would bar this suit. The City therefore is entitled to prevail on the ground of claim preclusion, although the district court did not decide the case on that ground. See Massachusetts Mutual Life Insurance Co. v. Ludwig, 426 U.S. 479, 96 S.Ct. 2158, 48 L.Ed.2d 784 (1976).
Illinois recognizes the principles of claim preclusion (also called res judicata or estoppel by judgment). Jones v. City of Alton, 757 F.2d 878, 884-85 (7th Cir.1985) (summarizing the law of preclusion in Illinois); Hagee v. City of Evanston, 729 F.2d 510, 513-14 (7th Cir.1984) (reconciling conflicting strands of Illinois law). One suit precludes a second "where the parties and the cause of action are identical." Redfern v. Sullivan, 111 Ill.App.3d 372, 376, 67 Ill.Dec. 166, 444 N.E.2d 205 (4th Dist.1982).
The City was a defendant in each replevin action. Frier could have urged constitutional grounds as reasons for replevin.
The replevin actions diverged from the path of this § 1983 suit only because the state judge adjudicated on the merits the propriety of the seizures. Having found the seizures proper, the judge had no occasion to determine whether the City should have offered Frier an earlier hearing. But this divergence does not mean that the two legal theories require a different "core of operative facts." The courts of Illinois sometimes put the inquiry as whether the two theories of relief "allege the same conduct" by the defendant. Kenny v. Interim General Superintendent, 112 Ill.App.3d 342, 349, 67 Ill.Dec. 876, 445 N.E.2d 356 (1st Dist.1983). Frier has attacked the "same conduct" — towing and detaining the cars without a determination of a parking violation — in all of his suits.
To the extent there is any doubt about this, we look (as we did in Hagee) to the purpose of doctrines of preclusion. Claim preclusion is designed to impel "parties to consolidate all closely related matters
The final question is whether it makes a difference that only two of the replevin actions went to judgment, while here Frier challenges the towing of four cars. Under Illinois law the answer is no. The defendant may invoke claim preclusion when the plaintiff litigated in the first suit a subset of all available disputes between the parties. See Baird & Warner, Inc. v. Addison Industrial Park, Inc., 70 Ill.App.3d 59, 26 Ill.Dec. 1, 387 N.E.2d 831 (1st Dist.1979), which holds that a suit on three of six disputed parcels of land precludes a subsequent suit on all six. We doubt that Illinois would see a difference between three lots out of six and two cars out of four.
If Frier had filed the current suit in state court, he would have lost under the doctrine of claim preclusion. Under 28 U.S.C. § 1738 he therefore loses in federal court as well.
SWYGERT, Senior Circuit Judge, concurring in the result.
In my view, the majority has simply applied the wrong analysis to the problem at hand. Rather than trying to squeeze a res judicata solution into a mold that does not fit, I would review the facts to determine whether Frier's procedural due process claims could withstand a summary judgment motion. Because I believe the City was entitled to summary judgment, I concur in the result.
In determining whether the disposition of a claim in State court precludes a subsequent suit on the same claim in federal court, the federal court must apply the State's law of res judicata. Allen v. McCurry, 449 U.S. 90, 96, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980). Because Illinois continues to adhere to the narrow, traditional view of claim preclusion, as opposed to the broader approach codified in the Restatement (Second) of Judgments §§ 24, 25 (1982), I would hold that Frier's substantive traffic law claim does not preclude this subsequent procedural due process claim. Under the more modern view of the new Restatement, all claims arising from a single "transaction" — broadly defined to include matters related in time, space, origin, and motivation — must be litigated in a single, initial lawsuit, or be barred from being raised in subsequent litigation. There was only one transaction in the case at bar: the seizure of Frier's cars. Accordingly, Frier should have raised both his substantive and procedural objections to the seizure in one initial lawsuit.
Illinois, however, has not adopted the view of the new Restatement.
In sum, the common set of facts that must be shown to invoke Illinois' doctrine of claim preclusion is defined as those facts necessary to sustain the cause of action, not as those facts that could be conveniently litigated in one lawsuit. This focus on the elements of the causes of action and the proofs at trial — rather than on the policy advantages of trying both actions in one suit — dooms any attempt to invoke claim preclusion in the case at bar. To be sure, both actions arise from the same seizure of the same cars. Yet, both the theory of recovery and focus of factual inquiry are dramatically different in each case. Frier's replevin claim was substantive in nature; to replevy property, the claimant must show his superior possessory rights. See Ill.Ann.Stat. ch. 110, § 19-104 (Smith-Hurd 1984); Hanaman v. Davis, 20 Ill.App.2d 111, 155 N.E.2d 344, 347 (1959). Frier's possessory rights turned on the legality of his parking. Because the trial court found that "the officer reasonably believed and had a right to believe that ... [Frier's] vehicle obstructed the free use and passage way of that street at that time," it concluded that, therefore, Frier did not enjoy the "superior right to possession of the property" necessary to sustain a replevin action. Appellee's Appendix at 98 (reprinting Transcript).
Frier's procedural due process claim requires an entirely different factual showing. The legality or reasonableness of the seizure is irrelevant. Because of the "risk of error inherent in the truth-finding process," Mathews v. Eldridge, 424 U.S. 319, 344, 96 S.Ct. 893, 907, 47 L.Ed.2d 18 (1976), an individual is entitled to certain procedural safeguards regardless of whether the deprivation of property was substantively justified. The focus of inquiry, then, is the adequacy of procedures attending the seizure, not the seizure itself.
The majority urges that Frier could have joined a separate constitutional claim to his replevin action. This precise argument was rejected in Fountas, 74 Ill.Dec. at 174,
Next, the majority points out that because the replevin statutes require a showing that the property was taken without "lawful process," ch. 110, § 19-104, a replevin action necessarily requires a showing of "due process." Ante at 702-703. This argument is essentially a pun on the word "process." The conventional meaning of "process" is "any means used by [a] court to acquire or exercise its jurisdiction over a person or over specific property." Black's Law Dictionary 1084 (5th ed. 1979). In other contexts, the Illinois courts have interpreted "lawful process" to refer to this conventional meaning of "process." People v. Rauschenberg, 29 Ill.App.2d 293, 173 N.E.2d 6, 11 (1961). The replevin statute's use of the words "lawful process" replaced the following language: "[The replevin complaint must allege that] the property is wrongfully detained by the defendant, and that the same has not been ... seized under any execution or attachment against the goods and chattels of such plaintiff liable to execution or attachment."
Somewhat more persuasive is the majority's reliance on a line of Illinois cases that appear to adopt a more transactional approach by focusing on whether the same "conduct" underlies both lawsuits. See ante at 702-03. In Hagee v. City of Evanston, 729 F.2d 510 (7th Cir.1984), this court extensively reviewed Illinois' law of res judicata and concluded that some appellate courts had begun to diverge from the strict traditional test by emphasizing the need to compare the "underlying" or "operative" facts of the various lawsuits. Relying on decisions of the Illinois Supreme Court, this court defined Illinois law to include two rules that modify the strict traditional test. A party may not maintain two suits based on the "same set of facts" by (1) "limiting the theories of recovery advanced in the first" or (2) "altering the claims for relief from one suit to the next." Id. at 514.
Although it is true that Frier "limit[ed] the theories of recovery advanced in the first [suit]," his second suit is not precluded because it is not based on the "same set of facts." The common operative facts required for claim preclusion are those facts necessary to sustain the cause of action, not those facts that can be conveniently litigated in one lawsuit. Hagee, then, merely repudiated those appellate court cases that relied on technical differences between theories of relief or remedies to avoid invoking claim preclusion despite a substantial overlap in the operative facts necessary to sustain both actions. See id. at 514 n. 7. This court did not, and could not, repudiate Illinois' consistent emphasis on the underlying cause of action, as opposed to the underlying transaction.
It was established at Frier's replevin trial that the City police caused various service station owners to tow four of Frier's cars and, in lieu of a traffic citation, left written notice of the reason for the towing and the whereabouts of the cars. Frier eventually recovered two of his cars. Thus, the replevin action, and this action, concern only two of the cars. Frier could have recovered one of those cars immediately by paying a $10.00 towing fee to the owner of the service station that towed the car. However, Frier was informed that any further delay in reclaiming the car would result in a $2.50 per day storage charge. See Appellee's Appendix at 38-42 (reprinting Transcript). Frier was free to reclaim the other car without paying any fee. See id. at 34-38. I would hold that, on the basis of these uncontested facts, the City was entitled to summary judgment against Frier's procedural due process claim.
The parties do not contest that the deprivation of an automobile, even if temporary, is a deprivation of "property" within the meaning of the fourteenth amendment. See Sutton v. City of Milwaukee, 672 F.2d 644, 645 (7th Cir.1982). Nor do they contest that, given the necessity of preserving the government's ability to enforce traffic regulations, the government need not provide any notice or hearing prior to seizing an illegally-parked car. See id. The sole issue on appeal is whether notice of the reasons for the towing, the availability of a State tort suit, and the ability to reclaim both towed cars in the interim by paying a nominal towing charge are sufficient postdeprivation "process" to satisfy the fourteenth amendment. See Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981).
In some circumstances, the federal courts have held that the availability of a postdeprivation State tort suit is itself sufficient process. Hudson v. Palmer, ___ U.S. ___, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); Parratt, 451 U.S. at 527, 101 S.Ct. at 1908; Brown v. Brienen, 722 F.2d 360 (7th Cir.1983); Wolf-Lillie v. Sonquist, 699 F.2d 864 (7th Cir.1983). On the other hand, where the State tort remedy is deemed speculative, incomplete, or overly time-consuming, the federal courts have held such process to be insufficient. Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-37, 102 S.Ct. 1148, 1157-58, 71 L.Ed.2d 265 (1982); Parrett v. City of Connersville, 737 F.2d 690 (7th Cir.1984), cert. dismissed, ___ U.S. ___, 105 S.Ct. 828, 83 L.Ed.2d 820 (1985). Rather than attempt to categorize the facts at bar as most analogous to any one line of cases, the appropriate course of action is to focus on the policies that underlie these decisions.
"Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property." Carey v. Piphus, 435 U.S. 247, 259, 98 S.Ct. 1042, 1050, 55 L.Ed.2d 252 (1978). Thus, the object of "process" is to minimize substantive unfairness or mistakes by enabling citizens to contest the deprivation, id. at 259-60, 98 S.Ct. at 1050, "at a meaningful time and in a meaningful manner," Logan, 455 U.S. at 437, 102 S.Ct. at 1158 (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965)). In determining what process is due, the court must weigh the individual's interest in procedural safeguards that minimize the
The Eldridge test requires the court to consider three distinct factors: "first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Eldridge, 424 U.S. at 335, 96 S.Ct. at 903. Applying this test to the case at bar, I conclude that the State replevin suit by itself is insufficient process. The dispositive question, therefore, is whether the procedures notifying Frier of the seizure and allowing him immediately to recover his cars can be considered the additional postdeprivation process necessary to satisfy the fourteenth amendment.
Turning to the first prong of Eldridge, the private interest affected by the seizure is substantial. A person's livelihood or ability to enjoy the amenities of life may depend on uninterrupted possession of an automobile. Even a temporary deprivation may inflict substantial hardship. Stypmann v. City and County of San Francisco, 557 F.2d 1338, 1342-43 (9th Cir.1977).
As for the second prong, this court has indicated that the risk of an erroneous deprivation in this context is minimal because "[t]he determination that a car is illegally parked is pretty cut and dried." Sutton, 672 F.2d at 646. I disagree. The City's ordinance prohibits in general terms the "obstruct[ion] ... [of the] free passage or proper use of the public of any street." Appellee's Appendix at 100 (reprinting Vandalia, IL, Ordinance 6.05). Whether an individual violates this ordinance requires an assessment of fault and the credibility of witnesses, issues which the Supreme Court has indicated are too likely to be resolved erroneously in the absence of the extensive procedural safeguards that attend trial-type hearings. See Eldridge, 424 U.S. at 343-45, 96 S.Ct. at 907; Mitchell v. W.T. Grant Co., 416 U.S. 600, 617, 94 S.Ct. 1895, 1905, 40 L.Ed.2d 406 (1974).
Moreover, the application of the cost-benefit analysis of Eldridge must be informed by an underlying theory of value. The due process clause was not meant to codify some arid theory of utilitarianism. Rather, the requirement of accuracy and minimum procedural safeguards follows from the fundamental assumption that government officials will tend to abuse unfettered discretion to oppress individuals; procedural safeguards place a check on such discretion and help preserve the substantive liberties and inherent dignity of the individual. See Rubin, Due Process and the Administrative State, 72 Calif.L.Rev. 1044, 1102-04, 1136-44 (1984); Mashaw, The Supreme Court's Due Process Calculus for Administrative Adjudication in Mathews v. Eldridge: Three Factors in Search of a Theory of Value, 44 U.Chi.L.Rev. 28 (1976). In sum, to allow the government to seize property pursuant to "cut and dried" traffic regulations without the availability of extensive trial-type procedures is to invite the kind of abuses of power that the due process clause was meant to prevent.
There is no question that the government here provided such procedures in the form of a replevin action, see Ch. 110, §§ 19-101-28, and a broad waiver of sovereign immunity, see Ill. Const. art. 13, § 4. The more difficult question is whether these procedures were sufficiently prompt to lend adequate protection against unwarranted invasion of individual property rights. Normally, to consign a due process petitioner to postdeprivation tort remedies is to consign him to years of potentially fruitless and expensive litigation. A replevin action, however, provides for expedited
Nevertheless, the deprivation of an automobile is too serious a burden on the individual to allow the government to retain possession in the interim at its infettered discretion. There must be some more immediate procedural safeguards that reduce this burden or that provide a prompt preliminary review to ensure that the government action was not arbitrary. Accord Goichman v. Rheuban Motors, Inc., 682 F.2d 1320 (9th Cir.1982); Stypmann, 557 F.2d at 1338; Grant v. City of Chicago, 594 F.Supp. 1441 (N.D.Ill.1984).
In assessing the timing and content of this additional process, it is necessary to consider the third prong of Eldridge: the resulting burden on the government. This includes the monetary costs of the additional process as well as (1) the negative impact on the ability to administer or enforce the government regulations and (2) the importance of those regulations. See Eldridge, 424 U.S. at 335, 96 S.Ct. at 903; Goichman, 682 F.2d at 1324-25; Sutton, 672 F.2d at 646-47; Rubin, supra, 72 Calif.L.Rev. at 1143-44.
The additional process afforded Frier was notice of the seizure and whereabouts of his car as well as his ability to reclaim the cars immediately for a nominal $10.00 towing charge. Although the ability to reclaim the cars might not be considered "process" in the traditional sense of the term, it is the functional equivalent of posting bond, which the Fifth Circuit has held to be adequate postdeprivation process in this context where the bond allows the petitioner immediately to reclaim his towed cars while securing his appearance in the State court to challenge the towing. Breath v. Cronvich, 729 F.2d 1006, 1011 (5th Cir.1984). Indeed, a minimal towing charge is more favorable to the petitioner than a bond because the bond costs more and secures the petitioner's payment of a potentially large loss.
I would hold, then, that notice of towing, the availability of an expedited State tort suit that can make the petitioner whole, and the ability to reclaim the towed cars immediately at a cost of $10.00 together constitute adequate postdeprivation process as long as the $10.00 fee does not present a financial hardship. This holding would not necessarily conflict with recent decisions of other courts requiring more immediate and elaborate postdeprivation process. See Goichman, 682 F.2d at 1323 (hearing required at least forty-eight hours after towing); Stypmann, 557 F.2d at 1344 (hearing for indigents within five days of the towing is "too long"); Grant, 594 F.Supp. at 1448-50 (hearing forty-eight hours after seizing car with ten outstanding traffic tickets not sufficient process unless hearing officer is impartial). More elaborate process may well be required in those cases because the towing practices of the various municipalities were more burdensome on the respective petitioners: immediate reclamation required significantly more than $10.00 and the litigants had standing to represent indigents who could afford no fee. We need not reach such troublesome issues in the case at bar.
I would find, as a matter of law, no procedural due process violation under these facts. Accordingly, I concur with the majority's decision to affirm the judgment below.