Fields v. StateFields v. State
ISSUE
Acts 1997, No. 1486 authorizes the impounding of a motor vehicle when the operator fails to present the statutorily required proof of insurance to an investigating officer. The trial court declared portions of this Act to be an unconstitutional violation of the right to due process under the
FACTS AND PROCEDURAL HISTORY
The Act
In 1997, the Louisiana Legislature adopted Act No. 1486 which amended and reenacted
(3) The records of the Department of Public Safety and Corrections, if such records reflect that the motor vehicle is covered by a valid and current policy of liability insurance.
(4) The law enforcement officer making the stop has a reasonable belief that the motor vehicle is covered by a valid and current policy of liability insurance.
If the vehicle is not in compliance with the law, it “shall” be impounded, and the operator “shall” be issued a notice of noncompliance. The notice of noncompliance shall serve as notice of the rights of the owner and shall contain the provisions of the statute.
At all times, the owner may request an administrative hearing limited to a review of the issue of whether the vehicle was covered by insurance at the time of the alleged violation; however, such a request will not stay the sanctions required by the statute.
The Lawsuit
On January 13, 1998, State Senator Cleo Fields filed suit against the State of Louisiana, Through the Department of Public Safety and Corrections (DPSC) and Richard L. Stalder, Secretary of Louisiana Department of Public Safety and Corrections, seeking a judgment declaring portions of Act 1486 of the 1997 Regular Session unconstitutional. First and Second Supplemental Petitions added State Senator Lynn B. Dean and citizens Toriano Lamonte Jordan and Ebony Denile Martin as plaintiffs.1 The plaintiffs requested the issuance of a temporary restraining order, a preliminary injunction, and a permanent injunction prohibiting the enforcement of the Act.
The original and supplemental petitions reveal plaintiffs challenged the constitutionality of the Act on several different constitutional grounds. First, plaintiffs alleged the Act abridged a person‘s due process rights under the
On January 16, 1998, the trial court issued a temporary restraining order restraining the State through the Department of Public Safety and Corrections from impounding any motor vehicles under
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the following phrase in Paragraph (C)(1)(a) is declared unconstitutional: “... the motor vehicle shall be impounded and ...”
IT IS FURTHER ORDERED ADJUDGED AND DECREED that the following phrase in paragraph (C)(5) is declared unconstitutional: “A request for a hearing shall not stay the sanctions required by this Part.”
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Paragraph (C)(6) is declared unconstitutional.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the following phrase in Paragraph (H)(2) is declared unconstitutional: “The rules and regulations shall provide that the failure to display the decal in an approved location on the vehicle or the displaying of an expired decal may subject the vehicle to being towed and impounded, unless the driver can show that the vehicle is covered by a valid policy of insurance or is self-insured pursuant to this Chapter before towing the vehicle.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that declaration of the unconstitutionality of the above parts of Act 1486 of the 1997 Regular Session of the Louisiana Legislature shall in no way affect the enforceability of the remainder of the statute, since
LSA-R.S. 24:175 makes all legislation severable in the event that one or more sections are declared unconstitutional.
Oral reasons both at the original trial and at the clarification of judgment hearing indicate the trial court declared these portions of the statute unconstitutional solely because they authorized the impoundment of the vehicle “prior to a hearing,” and “without a hearing.” “You have the right to a hearing before your property is seized,” the trial court observed. Thus, it appears the trial court found portions of the Act unconstitutional on the ground they violated due process because they authorized impoundment of the vehicle without a predeprivation hearing. The trial court did not address any of the other due process arguments (notice, vagueness, failure to promulgate rules) or any of the other alleged grounds for unconstitutionality under other constitutional provisions.
From the above judgment declaring portions of a legislative act unconstitutional, defendant was given a direct appeal to this court.
ANALYSIS
Under the
The meaning of procedural due process is well-settled. Persons whose rights may be affected by state action are entitled to be heard at a meaningful time and in a meaningful manner, and in order that they may enjoy that right, they must first be notified. In re Adoption of B.G.S., 556 So.2d 545, 549 (La.1990). For due process to apply, the private interest which will be affected by state action must be constitutionally cognizable. Id. If it is, then it becomes necessary to evaluate what specific process is due under the particular circumstances presented.
The State does not challenge the proposition that a motor vehicle owner has a property interest in his vehicle which cannot be deprived, even temporarily, without due process of law. The issue presented here is what process is due when an officer impounds a motor vehicle immediately after determining the operation of the vehicle is in violation of the Compulsory Motor Vehicle Liability Security Law because it does not contain the required documents evidencing insurance coverage.
Very generally, due process requires some kind of hearing and notice thereof. In Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), the United States Supreme Court set forth three factors to be weighed when determining the specific dictates required by due process: (1) the private interest that will be affected by the official action; (2) 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 (3) the government‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews, 424 U.S. at 335, 96 S.Ct. at 903. Due process is flexible and calls for such procedural protections as the particular situation demands. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). It is well established that “`due process,’ unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.” Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961).
With regard to the instant case, plaintiffs specifically object to the lack of a predeprivation hearing before a neutral decision maker prior to the impoundment of the vehicle and to the lack of notice to the owner, in cases where the operator is not also the owner, of the impounding itself and of the owner‘s rights. Plaintiffs additionally complain the Act violates due process because it is unconstitutionally vague.
Generally, before a person is deprived of a protected interest, he must be afforded some kind of hearing. However, this court has often recognized there may be circumstances involving a valid governmental interest which justify postponing the hearing until after the event. In re Adoption of B.G.S., 556 So.2d 545, 553 (La.1990). A deprivation without opportunity for a prior hearing or other effective substitute safeguard has been allowed in “extraordinary” or “truly unusual” situations. Paillot v. Wooton, 559 So.2d 758, 762 (La.1990). “[E]mergency action may be proper pending a hearing when matters of public health and safety are involved.” Id. See also Wilson v. City of New Orleans, 479 So.2d 891 (La.1985) and Bell v. Department of Health and Human Resources, 483 So.2d 945, 951 (La.), cert. denied, 479 U.S. 827, 107 S.Ct. 105, 93 L.Ed.2d 55 (1986) (“[W]e note that there seems to be an emerging concept that in some instances due process is fulfilled by a `post deprivation’ hearing. We believe that this view to procedural due process in certain situations is sound and is in support of our decision here.“).
Federal Jurisprudence
Numerous United States Supreme Court cases support and even broaden this view. The following quote briefly encapsulates the Court‘s most recent position on this issue:
This Court has recognized, on many occasions, that where a State must act quickly, or where it would be impractical to provide predeprivation process, postdeprivation process satisfies the requirements of the Due Process clause. (Citations omitted). Indeed, in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), we specifically noted that “we have rejected the proposition that [due process] always requires the State to provide a hearing prior to the initial deprivation of property.” 451 U.S., at 540, 101 S.Ct., at 1915. And in FDIC v. Mallen, 486 U.S. 230, 108 S.Ct. 1780, 100 L.Ed.2d 265 (1988), where we unanimously approved the Federal Deposit Insurance Corporation‘s suspension, without prior hearing, of an indicted private bank employee, we said: “An important government interest, accompanied by a substantial assurance that the deprivation is not baseless or unwarranted, may in limited cases demanding prompt action justify postponing the opportunity to be heard until after the initial deprivation.” Id., [486 U.S.] at 240, 108 S.Ct., at 1787-1788.
Gilbert v. Homar, 520 U.S. 924, 117 S.Ct. 1807, 1812, 138 L.Ed.2d 120 (1997)(emphasis added). See also Parratt v. Taylor, 451 U.S. 527, 539, 101 S.Ct., 1908, 1915, 68 L.Ed.2d 420 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)(“[Our] cases recognize that either the necessity of quick action by the State or the impracticality of providing any meaningful predeprivation process, when coupled with the availability of some meaningful means by which to assess the propriety of the State‘s action at some time after the initial taking, can satisfy the requirements of procedural due process.“).
Significant in the Supreme Court‘s jurisprudence in this area is whether the State is seeking to finally and permanently or temporarily deprive a person of his property interests. In Parratt, supra, the Court made clear that although some of its prior cases seemed to imply a predeprivation hearing was always required, this was not necessarily the case where a temporary deprivation was involved.
Our past cases mandate that some kind of hearing is required at some time before a State finally deprives a person of his property interests. The fundamental requirement of due process is the opportunity to be heard and it is an “opportunity which must be granted at a meaningful time and in a meaningful manner.” (Citation omitted). However, as many of the above cases recognize, we have rejected the proposition that “at a meaningful time and in a meaningful manner” always requires the State to provide a hearing prior to the initial deprivation of property. This
rejection is based in part on the impracticability in some cases of providing any preseizure hearing under a state-authorized procedure, and the assumption that at some time a full and meaningful hearing will be available.
Parratt, 451 U.S. at 540-41, 101 S.Ct. at 1915-16 (emphasis added)(footnote omitted).
Under the foregoing principles and in a variety of circumstances, the Supreme Court has held that a meaningful and prompt postdeprivation hearing of some sort sufficiently protected the due process rights of a person whose property interests had been previously affected in some way. Thus, in Gilbert v. Homar, supra, the Court found that due process did not entitle plaintiff to a predeprivation hearing where he was temporarily and immediately suspended (as opposed to terminated) without pay upon his arrest for a drug felony.3 Similarly, in Federal Deposit Ins. Corp. v. Mallen, 486 U.S. 230, 108 S.Ct. 1780, 100 L.Ed.2d 265 (1988), the Court noted that due process did not entitle an indicted bank official to a predeprivation hearing prior to his summary suspension by the FDIC in light of the FDIC‘s interest in protecting depositors and maintaining public confidence in our banking institutions. See also Barry v. Barchi, 443 U.S. 55, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979) where the Court held that the State‘s interest in preserving the integrity of the sport of horse racing and in protecting the public from harm justified a horse trainer‘s immediate suspension where his horse tested positive for drugs after a race.
Perhaps most relevant for our purposes, insofar as a person‘s ability to operate a vehicle was restricted, the Supreme Court has held a person‘s driver‘s license can be immediately suspended without a predeprivation hearing under certain circumstances. In Mackey v. Montrym, 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979) and Dixon v. Love, 431 U.S. 105, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977), the Court was called upon to decide whether statutes which allowed the immediate suspension of a person‘s driver‘s license under certain clearly enunciated circumstances violated due process because they did not provide for a pre-suspension hearing. In both cases, the Court held that the States’ interests in public safety combined with the de minimis risk of an erroneous deprivation justified immediate government action suspending a person‘s driver‘s license where followed by a postdeprivation opportunity to be heard.
Unlike the United States Supreme Court, the federal appellate courts have specifically addressed the issue of whether a predeprivation hearing is required where an individual‘s motor vehicle is towed and impounded. The circuits which have addressed the issue uniformly hold that where vehicles are illegally parked or not properly registered, a predeprivation hearing is not required to satisfy due process where there is provided some type of prompt post-impoundment hearing. DeFranks v. Mayor and City Council of Ocean City, 777 F.2d 185 (4th Cir.1985) (Predeprivation hearing not required prior to towing and impounding a vehicle which did not display a required parking permit regardless of whether the owner in fact had such a permit.); Breath v. Cronvich, 729 F.2d 1006, 1010 (5th Cir.), cert. denied, 469 U.S. 934, 105 S.Ct. 332, 83 L.Ed.2d 268 (1984) (“[I]t is clear that prior notice and hearing is not required to tow illegally parked cars.”); Sutton v. City of Milwaukee, 672 F.2d 644, 646 (7th Cir.1982) (Even where the illegally parked vehicle does not present an emergency situation, “it is not a violation of the due process clause to tow an illegally parked car without first giving the owner notice and an opportunity to be heard with respect to the lawfulness of the tow.“); Allen v. City of Kinloch, 763 F.2d 335, 336 (8th Cir.1985) (“It appears settled that municipalities authorizing towing of illegally parked cars are not required by the Constitution to establish pre-deprivation notice and hearing procedures.“); Scofield v. City of Hillsborough, 862 F.2d 759 (9th Cir.1988) (Due process does not require that a pre-towing notice or hearing be given to the owner of an unregistered vehicle before the vehicle can be towed.); Suffer v. City of Costa Mesa, 798 F.2d 361, 363 (9th Cir.1986) (“[W]e agree there is no right to a pre-tow hearing.“); Cokinos v. District of Columbia, 728 F.2d 502 (D.C.Cir.1983) (There is no due process right to pre-towing notice and hearing even where an illegally parked vehicle does not present an emergency situation.). Although the case before us does not deal with the towing and impoundment of an illegally parked or unregistered vehicle but of a vehicle which does not contain the required proof of insurance, we find this distinction insignificant because in all three instances the owner or operator is using a motor vehicle in a manner deemed illegal by the State.
Of course, once a vehicle is towed or impounded, some form of fair and impartial hearing at which an owner is given an opportunity to challenge the lawfulness of the removal of his vehicle and of the assessment of charges against him must be provided within a reasonable time period. Breath, supra, 729 F.2d at 1011. Under the instant Act, the owner may recover his vehicle the very next day after impoundment upon presentation of proof of insurance coverage at the time of the violation or even proof of newly acquired insurance provided he pays the towing and storage fees in either case. The owner has ten days from the issuance of the notice of noncompliance at the time of the impoundment to request an administrative hearing limited to the review of whether the vehicle was covered by insurance at the time of the violation.
Private Interests Affected
We turn now to the application of the Eldridge factors to the instant case in light of the above jurisprudence on pre- and post-deprivation hearings. The first step in the balancing process mandated by Eldridge is identification of the nature and weight of the private interest affected by the official action challenged. The private interest affected here is the owner‘s interest in his motor vehicle. More particularly, it is his interest in continued possession and use of his motor vehicle pending the outcome of the hearing due him. Even a temporary, nonfinal deprivation of property is nonetheless a “deprivation” within the contemplation of the
On the other hand, the State is not seeking to actually take ownership of the vehicle but only to temporarily suspend its use pending presentation of proof of insurance. Although the deprivation is significant, it is only temporary, and the Supreme Court has recognized that in determining what process is due, account must be taken of “the length” and “finality” of the deprivation. Gilbert, supra, 117 S.Ct. at 1813. See also Mackey v. Montrym, 443 U.S. 1, 12, 99 S.Ct. 2612, 2618, 61 L.Ed.2d 321 (1979) (“The duration of any potentially wrongful deprivation of a property interest is an important factor in assessing the impact of official action on the private interest involved.“). So long as the motor vehicle owner receives a sufficiently prompt postdeprivation hearing or opportunity to be heard, the financial loss incurred because of the temporary impoundment of the vehicle is relatively insubstantial when compared to the types of deprivations which the Supreme Court has held require predeprivation hearings such as termination of employment, Loudermill, or civil forfeiture of a home, U.S. v. James Daniel Good Real Property, 510 U.S. 43, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993).
Additionally, although our constitution grants to persons the “right to acquire, own, control, use, enjoy, protect, and dispose of private property,” this right “is subject to reasonable statutory restrictions and the reasonable exercise of the police power.”
We recognize the owner also has a financial interest in the personal inconvenience and economic hardship he will suffer as a result of the impoundment as well as the towing and storage fees he will have to pay, regardless of whether he, in fact, has motor vehicle liability insurance. However, the law at issue here premises impoundment on the requirement that a motor vehicle contain certain documentary proof of insurance, not on the fact of whether or not that vehicle is actually insured. The legislature has chosen to make it a violation of Louisiana law for a motor vehicle to fail to contain certain documentary proof of insurance.
Risk of Error
Having determined the nature of the private interests involved, we turn now to the risk of error inherent in the chosen procedure. Because a primary function of the legal process is to minimize the risk of erroneous decisions, the second stage of the Eldridge inquiry requires consideration of the likelihood of an erroneous deprivation of the private interest involved as a consequence of the procedures used. Mackey v. Montrym, 443 U.S. 1, 13, 99 S.Ct. 2612, 2618, 61 L.Ed.2d 321 (1979). There is virtually overwhelming assurance the deprivation in these cases is not baseless or unwarranted. The statute authorizes impoundment of the motor vehicle when it does not contain the requisite documentary proof of insurance. The occupant of the motor vehicle either will or will not be able to produce this proof. An officer will easily and readily be able to determine whether the operator has produced such proof. A predeprivation hearing on the issue of whether or not the vehicle contains this proof would be redundant and serve no additional purpose for it would be the rare occasion where the vehicle‘s owner would be able to convince an impartial arbiter that he really did show proof of insurance to the officer. See, e.g., Sutton v. City of Milwaukee, 672 F.2d 644, 646 (7th Cir.1982) (observing that a pre-towing hearing was not necessary in cases involving illegal parking because a determination that a vehicle was illegally parked was “pretty cut and dried.“).
Plaintiffs err by concluding the risk of erroneous deprivation is great because motor vehicles which are actually insured will be impounded if they do not contain the statutorily required documentary proof. In fact, plaintiffs averred during argument these people “are in compliance” with the Compulsory Motor Vehicle Safety Responsibility Law and are being unfairly punished. However, this argument ignores the statutory scheme. Louisiana
Although the legislature has determined the consequences of the owner‘s inability to produce this proof are lessened where there was in fact insurance on the motor vehicle at the time it was impounded,
This case is very similar to Mackey v. Montrym, supra. Under Massachusetts law, a person who refuses to submit to a breath analysis test upon his arrest for operating a motor vehicle while under the influence shall have his license suspended based solely on the officer‘s report indicating the fact of the arrest, the grounds supporting the arrest, and the fact of the driver‘s refusal to take the breath analysis test. It is not necessary for the driver to be convicted of D.W.I. nor is it necessary that the driver in fact was operating the vehicle while under the influence for his license to be immediately suspended. The suspension is effective immediately, with the driver being given the opportunity to appeal the suspension or to request an immediate post-suspension hearing. The Supreme Court held the driver was not entitled to a pre-suspension hearing. Although it noted the driver had a substantial property interest in the license which allowed him to operate a motor vehicle, there was little risk of an erroneous deprivation, and additional procedures would serve no purpose, especially in light of the strong state interest in the suspension. Specifically, the Court noted that the predicates for the driver‘s suspension were the objective facts of probable cause justifying the arrest and the driver‘s refusal to take the test. It was not relevant, for purposes of the Massachusetts statute, whether the driver was, in fact, operating the vehicle while under the influence—only that he had been arrested based on probable cause for doing so. In such a case, the Registrar of Motor Vehicles was required to suspend the license. The risk of an erroneous observation or deliberate misrepresentation of the facts by the reporting officer was found “insubstantial” and a hearing prior to the suspension by the Registrar would be “an exercise in futility” because the Massachusetts Legislature had already made the determination that the Registrar lacked discretion as to whether or not to suspend the license.
Another case involving a similar analysis is Gilbert, supra. Therein, the Supreme Court upheld the temporary suspension without a predeprivation hearing of a state employee who had been arrested on felony charges. A presuspension hearing was not necessary because its only purpose would be to assure that there were reasonable grounds to support the suspension without pay, and this had already been assured by the arrest and the filing of charges. Similarly, in Federal Deposit Ins. Corp. v. Mallen, supra, the U.S. Supreme Court held a pre-deprivation hearing was not required where a bank official‘s employment was immediately suspended upon indictment. Likewise, in Barry v. Barchi, supra, the Court held a pre-deprivation hearing was not required where a horse trainer was immediately suspended upon his horse‘s positive test for drugs. Although it could ultimately be shown at a hearing that the indictment was not warranted or that the drug test was false, the states’ interests justifying immediate suspension were paramount where there was an opportunity for a postdeprivation hearing and where there was some assurance, in the form of the indictment and the positive drug test, that the deprivation was not baseless or unwarranted.
In the instant case, we are dealing only with the temporary impoundment of a motor vehicle because it did not contain the statutorily required documentary proof of insurance. It is irrelevant at that point whether
We note that because the owner is able to recover his vehicle with proof of insurance the very next day after the impoundment, thereby limiting the storage fees he incurs as well as the length of time he is deprived of his vehicle, there is no additional harm to him resulting from the fact that the administrative hearing will not be held until some indefinite time in the immediate future.5 If the owner shows at the hearing that his vehicle was in fact insured at the time of the issuance of the notice of noncompliance and that this proof was in fact presented to the officer, then the owner can be made whole after the hearing with a refund of the towing, storage, and administrative fees since the tow would have been illegal. If the owner shows at the hearing that his vehicle was in fact insured at the time of the issuance of the notice of noncompliance even though this proof was not presented to the officer, then the owner, who was able to obtain his vehicle the very next day after the impoundment, was still properly held accountable for the towing and storage fees because the tow was justified by the vehicle‘s failure to contain such proof. Finally, an administrative hearing, whether delayed or not, is of no benefit to an owner whose vehicle remains uninsured, and thus impounded, because the State is allowed, as explained earlier, to make it illegal for vehicles to be operated without insurance. Under any of these factual situations, the effect of the delay between the impoundment of the vehicle and the administrative hearing is minute.
Governmental Interests
The third factor of the Eldridge balancing test requires us to identify the governmental function involved and the state interests served by the summary procedures. The State‘s interests are immediately apparent in Louisiana‘s requirement that a motor vehicle be impounded where it does not contain the required documentary proof of insurance. To begin with, Section 1 of Act 1746, which included, inter alia, the instant impoundment provisions, stated it was enacted out of a concern for: (1) the lack of compliance with the Motor Vehicle Safety Responsibility Law; (2) the high incidence of motor vehicle accident claims in the State‘s courts; (3) the reduction of the high cost of motor vehicle insurance through reformation of the civil justice system; (4) the evident imbalance in the State‘s motor vehicle insurance system
Requiring that proof of insurance be contained within the motor vehicle provides the easiest, quickest, most efficient, and least subjective method for an officer to determine whether or not a motor vehicle complies with the compulsory insurance requirements. Providing that a motor vehicle lacking such proof will be immediately and temporarily impounded pending the presentation of such proof to the office of motor vehicles will primarily serve as a deterrent to those who consider not insuring their automobiles. This in turn serves to increase the number of insured automobiles, reduces the need for uninsured motorist coverage, and, thereby reduces premiums for all citizens of the state. The immediate impoundment will also serve to quickly remove from the roads a vehicle which the legislature, given its documentary proof requirement, is entirely justified in assuming lacks motor vehicle insurance. This summary action will necessarily reduce the number of accidents involving uninsured automobiles, reduce insurance company costs, and in turn, reduce premiums.
A pre-suspension hearing on the issue of whether or not the motor vehicle is, in fact, insured, will fail to accomplish either of these purposes as effectively. First, there is virtually no way the city or state can conduct a pre-towing hearing at the time and place where the officer has discovered the vehicle does not contain proof of insurance. The cost of doing so would be clearly prohibitive and would ultimately require the abandonment of towing and impoundment as a method of dealing with uninsured motorists. See, e.g., Sutton v. City of Milwaukee, 672 F.2d 644, 646 (7th Cir.1982). As a result, in order to provide a pre-towing hearing at some subsequent time, the State would be required to allow these presumably uninsured vehicles to remain free, pending the predeprivation hearing, to traverse the public roads. This would increase the likelihood of an automobile accident involving an uninsured motorist with its concomitant increase in premiums. Furthermore, and perhaps most significantly, the incentive to obtain insurance and to keep proof of insurance in the automobile, will be lessened absent the threat of immediate impoundment.
This case is readily distinguishable from Wilson v. City of New Orleans, 479 So.2d 891 (La.1985) relied on by plaintiffs as controlling our decision herein. That case dealt with alleged due process violations in a scofflaw immobilization program administered by a private corporation. The corporation collected unpaid parking ticket fines on vehicles with three or more unpaid parking violations through the use of a “boot” which immobilized the vehicle. This court, balancing the Eldridge factors, required that there be notification of the proposed boot order and a brief period for informal discussion prior to the issuance of the immobilization order. The court focused on the risk of error by human or computer as to whether or not there were at least three outstanding parking tickets, the lack of a neutral decision maker (the private corporation received a portion of all fines collected, and the immobilization program was the “heart” of its enforcement program), and the weak state interest in immediately immobilizing vehicles which are legally parked in order to mandate compliance with past violations.
[T]he routine daily booting of automobiles as part of a municipal parking enforcement system does not present a “truly unusual” situation justifying outright seizure without opportunity for notice and at least an informal hearing prior to final issuance of the order to boot. Seizure before notice of a pending proceeding to boot and an opportunity to object informally is not necessary to secure any governmental or public interest involved in the booting operation. There is no need for action so prompt following the initial proposal to boot as to preclude effective notice and a chance to be heard at least informally.
In the instant case, the motor vehicle is not in compliance with the law at the time it is impounded. Preventing a presumably uninsured vehicle from remaining on the
In sum, the State‘s interests in removing uninsured motor vehicles from the road and in deterring persons from operating a motor vehicle without insurance are significant. These interests justify the immediate deprivation of an owner‘s use of his motor vehicle where that deprivation is only temporary, where the owner may present proof of insurance and obtain his vehicle the very next day, where the risk of error as to whether the owner had such proof in his motor vehicle is minute, where the officer and the office of motor vehicles are neutral and detached and without financial incentive in the impoundment, and where the owner may request a postdeprivation administrative hearing if he is dissatisfied with the process.
Notice
Under the Act, the operator of the motor vehicle to be impounded is issued a notice of noncompliance listing his rights under the statute. Nowhere does the Act require any other notice to the owner of the motor vehicle although it is the owner who has three days from the issuance of the notice of noncompliance to present proof of insurance coverage and it is the owner who is liable for the various fees and penalties. Once the motor vehicle is towed and impounded, however, other statutes do provide for notice to the owner.
An elementary and fundamental requirement of due process is notice reasonably calculated under all the circumstances to apprise interested parties of the pendency of the action and to afford them an opportunity to present their objections. Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978). Plaintiffs do not object to a lack of notice that their vehicles could be impounded absent proof of insurance or of their rights upon impoundment, nor could they. The Act itself
It is reasonable to assume that in the majority of cases, the operator who receives the notice of noncompliance is also the owner. In such cases, the owner receives notice of the impoundment and of his rights under the statute immediately. As early as the next day, he can present proof of motor vehicle insurance to the office of motor vehicles and obtain the release of his vehicle. Under these circumstances, there can be no claim notice of the impoundment itself is deficient.
In the vast majority of the remaining cases, it is also reasonable to assume the owner explicitly or implicitly gave permission or authority to the operator to use the motor vehicle. In such a case, we find the operator is by operation of law the owner‘s representative for service of the notice of noncompliance and notice of the impoundment itself. Here,
This conclusion is supported and, indeed, compelled by
We acknowledge the potential for the rare situation where an unauthorized or authorized
Applying the Eldridge factors to this particular issue of notice, we conclude the procedure for giving notice to be constitutionally acceptable in this case. First, regarding the private interests affected, we immediately observe that the owner‘s interest in his motor vehicle is only temporarily infringed as opposed to being completely abolished or taken, and in all but the rare case, the owner will receive prompt notice that his vehicle has been impounded either directly from the officer or soon thereafter from the operator of the vehicle. Even in the unusual case involving an uncooperative or even unauthorized operator who fails to inform the owner of the tow, the owner will be informed of it within twenty-four hours by the authorities if he reports his vehicle missing or stolen and will receive a notice by certified mail from the storage facility within approximately seven days. He may also have a cause of action against the operator who failed to inform him of the impoundment. On the issue of the risk of error, the possibility that an owner will not receive notice within the three day period is minimal as it is reasonable to assume the vast majority of impounded vehicles will be operated by the owners themselves or by operators who will inform the owner of the impoundment. Furthermore, any error can be cured because in all cases, the owner can request an administrative hearing, and, if he proves the motor vehicle was insured at the time of the impoundment, his license and registration will be reinstated and his vehicle returned to him for a $10.00 fee plus towing and storage fees.8 Finally, with respect to the governmental interests involved, although it does not appear it would be any great financial or administrative burden for the office of motor vehicles to mail a notice of noncompliance to the registered owner the day following the impoundment, we simply do not believe this action is necessary for this scheme to comport with due process given: (1) the improbability that an impounded motor vehicle would be driven by a non-owner who fails to inform the owner of the impoundment, (2) the temporary nature of the deprivation, (3) the ability of the owner to bring a civil action against an operator who fails to inform him of the tow, (4) the ability of the owner to discover the whereabouts of his vehicle within twenty-four hours simply by calling the authorities when he mistakenly believes his vehicle lost or stolen, (5) the seven-day notice required to be mailed to the registered owner by the storage facility, (6) the owner‘s ability to have his license and registration reinstated
Vagueness
Plaintiffs additionally alleged below the Act violates due process because it allows an officer to decline enforcement of the provision upon a “reasonable belief” the motor vehicle is covered by insurance, the parameters of which are undefined by the Act and therefore unknowable by the public. The constitutional requirement of definiteness in a statute derives from the due process clauses of the Louisiana and United States Constitutions. A penal statute must give adequate notice to individuals that certain contemplated conduct is proscribed and punishable by law and must provide adequate standards for those charged with determining the guilt or innocence of an accused. State v. Union Tank Car Co., 439 So.2d 377, 384 (La.1983). Adequate notice consists of language which allows ordinary men and women of reasonable intelligence to understand and obey the law, and to conform their conduct thereto. Id. The constitutional requirement of definiteness is satisfied when the language of a penal enactment “has a generally accepted meaning such that a person of ordinary intelligence would be given fair notice of what conduct is forbidden.” Id. at 385. The requirement of adequate standards for ascertaining guilt mandates that a statute mark boundaries which are sufficiently distinct for judges and juries to administer the law in accordance with the legislative will. Id. at 385.
We need not address whether the Act is penal in nature for even assuming the instant Act is penal and not civil in nature, it satisfies the above criteria. The instant Act makes it very clear the conduct which is proscribed is operating or authorizing the operation of a motor vehicle which does not contain within it certain documents evidencing the vehicle is covered by insurance. It defines acceptable proof as including not only certain documents but also where “the law enforcement officer making the stop has a reasonable belief that the motor vehicle is covered by a valid and current policy of liability insurance.” An individual can certainly and easily conform his conduct to the requirement of proof in order to avoid impoundment. He is given fair notice of the conduct which is forbidden. Even assuming an individual may not know with particularity what constitutes a “reasonable belief” on behalf of the officer, he is informed in definite terms that he can escape any penalty if his vehicle contains the necessary documents. In other words, an individual can modify his behavior to conform to the Act and avoid any penalty whatsoever by insuring his vehicle contains a record of insurance. This is distinguishable from those cases where the crime itself is defined in terms of “reasonableness.” See, e.g., the statute stricken as vague in State v. Dousay, 378 So.2d 414 (La.1979) which required that a person having authority over a sewage treatment plant “take all usual and all reasonable measures and precautions to secure and ensure the property operation” of the plant. In such a case, it was impossible for the individual to determine what conduct was required of him in order to avoid a criminal sanction.
Furthermore, we decline to strike as vague a provision which manifestly operates to the benefit of the citizens of this state. It ameliorates the harshness of this Act by allowing an officer, in those cases where the automobile does not contain the documentary proof, to decline to impound the vehicle when he reasonably believes the vehicle is covered by insurance. We can think of any number of circumstances where an officer may conclude a reasonable basis for such a belief exists. To require the legislature to attempt to provide an explicit enumeration of these facts or circumstances would necessarily result in the exclusion of some reasons which an officer may feel are sufficient and would unduly hamper the exercise of discretion left to the officer—discretion which can only operate to benefit certain motor vehicle owners who would otherwise have their vehicles automatically impounded. In this vein, we note plaintiffs allege the Act is unconstitutional because the “reasonable belief” exception allows for an officer to unlawfully discriminate when deciding which vehicles may actually be insured. This allegation is in the nature
CONCLUSION
The judgment of the trial court is reversed. The case is remanded to the trial court for consideration of plaintiffs’ remaining arguments previously pretermitted below. In order to avoid piecemeal litigation, the trial judge is instructed to rule on all constitutional claims before him at that time.
REVERSED AND REMANDED.
CALOGERO, C.J., dissents and assigns reasons.
JOHNSON, J., dissents and will assign reasons.
CALOGERO, Chief Justice, dissenting.
The majority concludes that the Act before us is constitutional, finding that (1) the vehicle owner‘s due process rights are adequately protected by post-deprivation remedies provided for in the Act, (2) the lack of notice of noncompliance to the owner under circumstances in which the operator and the owner are not one and the same does not render the Act constitutionally deficient, and (3) the Act is not unconstitutionally vague. While I agree that the post-deprivation remedies adequately protect an owner‘s due process rights where the owner has received a timely notice of noncompliance, I believe that the majority erred in its conclusions with regard to the latter two findings. Thus, for the reasons that follow, I respectfully dissent.
In my view, the Act fails to provide adequate protection to the owner of a vehicle that is impounded under the circumstances in which the operator of the vehicle is not also the owner. Under the Act, the owner of the vehicle has three days from the issuance of the notice of noncompliance to present proof of insurance coverage in order to avoid having the license plate destroyed and the registration of the vehicle revoked. Moreover, it is the owner—and not the operator—who is solely responsible for the various fees and penalties arising from the impoundment. However, the notice of noncompliance is issued only to the operator of the vehicle, with no provision under the Act for such notice to be also issued to the owner of the vehicle, where the operator and owner are not one and the same.
The majority glosses over this defect by concluding that “in the majority of cases, the operator who receives the notice of noncompliance [will also be] the owner [of the vehicle].” Slip op. at 1259. The majority further speculates that “[i]n the vast majority of remaining cases, it is ... reasonable to assume the owner explicitly or implicitly gave permission or authority to the operator to use the motor vehicle [and that, i]n such a case, ... the operator is by operation of law the owner‘s representative for service of the notice of noncompliance and notice of the impoundment itself.” Id. The majority then concedes that there is “the potential for the rare situation where an unauthorized or authorized operator [will fair] to promptly inform the owner of the impoundment of the vehicle,” but concludes that this “rare potential” does not offend procedural due process. I disagree both with the majority‘s speculative and unsupported conclusions regarding the potential frequency in which an owner who is not also the operator might fail to receive timely notice of the impoundment and with the majority‘s conclusion that the potential for such failures does not violate the constitutional guarantees of procedural due process.
I also take issue with the majority‘s finding that the provision which grants the officer the unfettered discretion to determine which vehicles will be impounded does not render the Act unconstitutionally vague. Under
In State v. Muschkat, 706 So.2d 429, 432 (La.1998), this Court explained that “the most important aspect of the vagueness doctrine is the requirement that a legislature establish minimal guidelines to govern law enforcement.” The Court went on to instruct as follows: “Where the legislature fails to provide such minimal guidelines, a criminal statute may permit a standardless sweep [that could] allow [] policemen, prosecutors, and juries to pursue their personal predilection.” Id. This is the very danger that is present under the above-quoted statutory provision that grants the investigating officer the unfettered discretion to enforce the impoundment law against some operators who fail to provide the necessary documentary showing, while exempting others who fail to do the same. Thus, because the offending statute, in the instant case, fails to set forth minimal (or any) guidelines to govern the standard for determining whether an operator without documentary proof has nonetheless met the burden of proving that the vehicle is insured, I would find the Act as written to be unconstitutionally vague under the standards set forth in this Court‘s decision in Muschkat, supra.1
For the reasons given above, I dissent.