In our fifth appeal that we have had to take in the tow release fee cases (we have 8 pending) we won. The appeals court ruled that the judge improperly dismissed the Belleville class action. The judge ruled that the class should be certified but refused to do so since my client did not physically walk into the police station to post his money. The judge did not give any explantion as to why he ruled accordingly. We appealed and the appeallate court agreed with us. They remanded the case back to court for further proceedings. Now that all summary judgment motions have been resolved in our favor in all cases we can finally obtain jury trial dates. As of this date most of the cities have raked in over $1,000,000 each from these fees. Alton is very close to $2,000,000. If we are able to win the cases, which I firmly believe we will, the class members (all those who paid a fee to the cities) will receive as much of their fees back as possible. The cities in these cases really don't have any defense. They won't settle because insurance is not covering any losses. That is their problem. They should have had better legal support when deciding whether to implement the ordinances that caused this fee. Many police jurisdictions did not push this type of fee due to the legal problems that could arise.
Most attorneys who have attacked these fees have done so on a different theory (procedural due process) that has always failed. I'm not sure why they didn't think the theory through more completely. I believe I am the only attorney who has filed a substantive due process claim in these cases. The procedural due process theory claims the clients didn't receive proper notice or hearing. That theory will always lose. My theory is that despite whatever process is in place to contest the fees, the real issue is that the fees themselves are unconstitutional. The legal test is whether the $500 fees are rationally related to the actual reason as stated in the ordinances. Most ordinances state the fees are to reimburse the departments for towing and impoundment costs. However, none of the police departments provide towing or impoundment services. Those services are delegated to third party towing services who receive calls on a rotating basis. Dispatch merely calls whichever towing service is available to tow and store the vehicle. The police may actually stay on scene for a few minutes awaiting the tow truck but discovery has shown this actual cost is approximately $37.00.
On every DUI (or other charge for that matter) case the municipality receivesfrom between $350 to $750.00 from court costs assessed each defendant who pleads guilty to a DUI. So the police are already receiving 10 times what their costs are from the court costs. Aside from that they also receive various grant monies from both state and federal sources to conduct saturation patrols. These patrols are almost always directed at DUI enforcement. And lastly, each municipality receives tax funding for their police forces. So the tow release fees are "icing on the cake" or a way to grab more money from the individuals arrested for DUIs.
I am very much looking forward to jury trials in these cases. The government already takes enough money from us. This scam is clearly unconstitutional and won't pass muster with a jury.
