*1 аlways required compli- We have careful requirements PATTERSON,
ance
Crim.P. 11. Stephen
Plaintiff-Appellee,
guilty plea
accepted
A
cannot be
absent a
v.
affirmatively showing
record
a factual basis
Dan CRONIN
by that
People
as
rule.
v.
See
Denver, municipal corporation,
Murdock,
187 Colo.
(1975);
plea.
188 Colo.
dolph, explanation
No amount of to the defend- the value element
ant of theft felony
charge can serve as a surrogate for estab- a factual
lishment of basis to support that of the charge,
element or for a waiver of a of that basis in
presentation fact. This is
not a case of mere lack of adherence to a See, advisement format. e.g., People
ritual
Lambert,
189 Colo.
majority’s own recital of the facts amply
demonstrates, a factual basis for the value presented
element was not form at Furthermore, providency hearing. determined, Appeals
the Court there is support
no foundation record to
conclusion that the defendant waived the of a full
presentation factual basis for
plea. view the my Colorado Court of Ap correctly
peals decided the issues prop reversed the trial
erly court’s denial of the 35(b)
defendant’s Crim.P. motion. People Cushon, 631 P.2d I (Colo.App.
would affirm the decision of that court.
I am authorized say that Justice DU- QUINN and Justice join
BOFSKY me in
this dissent.
533
I. August 17,1977, Prior to Stephen Patter- automobile, son’s Checker New bearing plate BSB065, Mexico license number illegally parked in Denver on seven sepa- *3 instance, rate occasions. In each a sum- complaint mons and was affixed to the windshield of The sum- automobile. mons ordered Patterson to appear before Jr., Frye Sawaya, Frye, John & R. Rich- the Denver Traffic Bureau with- Violations Rose, Denver, ard B. for plaintiff-appellee. in seven to days alleged answer the viola- Zall, Himel- City Atty., Max P. Gerald Municipal tion of the illegal park- Code for Denver, grin, Atty., for defend- City Asst. ing. Additionally, each contained summons ants-appellants. following warning: “IMPORTANT: FAILURE TO RE- ERICKSON, Justice. SPOND WITHIN 30 OF DAYS ISSUE appellant, City County The and of Denver DATE WILL SUBJECT THE VIOLAT- (Denver), appealed has from a decision of OR TO SUCH OTHER PENALTIES AS the Dеnver District Court which held that LAW, BY PRESCRIBED INCLUDING service of a summons for parking a viola- affixing tion a THE summons and IMPOUNDING OF THE VEHICLE complaint to an unattended is invalid. AND INVOLVED THE ISSUANCE OF The district court concluded that the meth- A WARRANT FOR THE ARREST OF process, od of service permitted of by sec- THE VIOLATOR.” tion 505.4 of the Municipal Revised Code of instances, In each of seven Patterson City County and of (Municipal Denver respond. failed to Accordingly, Denver Code),1 was defective because did not Traffic Violations Bureau issued an order comply with the methods of service re- that his automobile be immobilized in ac- 206(f) quired by Rule of the Colorado Mu- provisions cordance with the of section 505.- nicipal Court Rules of (Municipal Procedure 11-1(15) Municipal of the Denver Rules).2 We affirm Code.3 the district court judgment upon but different grounds. order, Pursuant to a was at- “boot” Municipal complaint 1. Section of the Denver 505.4 Code “A or summons summons and is- provides: pursuant to these sued rules shall be served Illegally personally upon copy “Notice of Parked Vehicles. the defendant and a When- any service, given personal motor vehicle ever without driver In lieu to him. of stopped parked or found in violatiоn may copy of the leaving made service be imposed by restrictions this Main Division complaint summons or summons and at the Code, any FIVE of the Revised place defendant’s usual of with abode some police any employee City or officer and person age years eighteen over resid- Denver, County designated the Mana- by mailing copy therein to the de- or Safety ger give and Excise to such notices fendant’s last known address certified duties, part finding as a of his official such mail, receipt requested, not return less than vehicle, registration shall takе its number days prior to five the time the defendant and take other information dis- required appear.” to played may identify on user, conspicuously and shall affix to such 505.11-1(15) pertinent provides 3.Section writing vehicle a notice in on a form autho- part: hereof, rized 505.1 section for the driver driver, owner, person charge “When a respond charge thereof to to and answer the respond of such vehicle has failed to to a against (7) days him within seven notice of and has ... also Traffic Violations Bureau. The officer or em- respond to the notice failed additional sent ployee copy shall send one notice so registered employees to the owner ... copy Chief of issued to the Police and one Denver, City County acting in their the Traffic Violations Bureau.” capacity, official officers Police 206(f) provides: hereby Department may, they 2. C.M.C.R. are autho- 206(f), Patterson was not 17, ments of August C.M.C.R. automobile on to the tached violation Denver Sheriff’s by member addition, im- subsequent Accordingly, an immobiliza- Department.4 charges. the vehicle which to sec- was affixed to of his vehicle tion mobilization part: pertinent 505.11-1(15) taking constituted The of law. without property “RELEASE: that Patterson failed then concluded court obtained at the Clerk’s can be Release damage resulting actual prove court, county Room Office vehicle but that Pat- of his Building, .... Ar- was entitled nominal terson made for the release must be rangements sum of $250. after the installation within 72 hours will removed or the vehicle be this device impounded pursuant from the street II. 505.11-1(15). NO CHECKS to section *4 with the trial Initially, disagree we IN PAYMENT OF FINES.” ACCEPTED of practice that Denver’s conclusion court’s day following was removed the The boоt to the complaint a summons and affixing the traffic appeared Patterson before when of an unattended motor vehicle windshield his accumulated fines and paid and bureau parking of a violation. notice improper fee.5 “boot” a ten dollar in issue Although the method of service Patterson filed August On by sanctioned C.M. specifically is not here action in the Denver District rights
civil
206(f), we hold that it is sufficient for
C.R.
City’s
failure to
alleging
Court
the owner
purpose
notifying
of
the limited
immobilizing
his
provide
parking
vehicle of a
unattended motor
of an
process
his
to due
violated
violation.7
by the Fourteenth
guaranteed
of law
and
authority
promulgate
The
to the United States Constitu-
Amendment
Rules is vest
Municipal
Court
interpret
II,
and Article
section 25 of the Colora-
VI,
to Article
in this Court
ed
sought damages pur-
He
do Constitution.
2 and 21 of the
Constitu
sections
1983 and 42
U.S.C.
U.S.C.
§
suant
statutory
of
con
Fundamental
rules
tion.
alleged
dep-
unconstitutional
for the
§
require
Municipal Court
struction
of the use of his automobile.6 In
rivation
as a
liberally construed when read
Rules be
ruling
complaint,
on the
the trial court did
whole,
adopt
we must
a construction
and
whether
not reach
issue of
purpose
with the
of the rules.
consistent
predeprivation hearing
before a
Farms,
Down
195 Colo.
v. Watered
Rowe
be immobilized.
In-
may
vehicle
motor
Westminster
576 P.2d
stead,
that because the
the court concluded
164 Colo.
435 P.2d
Phillips,
the individual
summons-
service of
Municipal
Rules
Court
affixing
purposes
them to Patterson’s automo- The
es
fair-
simplicity
procedure,
to “secure
comply
require-
did not
notice
are
bile
Denver,
City
County
temporarily
period
Safety
and
of
and
rized to
and for a
of sev-
for
Lavato,
hours,
enty-two (72)
member of the Denver
such vеhicle
immobilize
Officer
vehicle,
on,
installing
attaching
Department
Patter-
who immobilized
to such
Sheriffs
trial,
designed to restrict
the normal
Prior
Patterson
a device
automobile.
son’s
”
punitive
complaint waiving
of
vehicle....
movement
such
amended
substituting
City
damage
claim and
screws,
clamps,
The boot consists
metal
4.
place
County
as a defendant
of Denver
which,
padlocking
device
when attached
Lavato.
Officer
vehicle, prevents
being
wheel of a
from
to the
driven.
unlawfully parked
driver of the
7.Should
automobile,
City
section
“boot” fee was raised
be found with the
5.
fifty
person-
requires
Denver to
dollars.
Code
505.2-2
206(f).
compliance with
C.M.C.R.
al service
sought
complaint
both actual and
Patterson’s
Cronin, Manager
punitive
administration and the
on the ground
ness in
elimination
that it is in itself reason-
unjustifiable expense and delay.”
C.M.
ably certain to inform those affected.”
650,000
202. Denver issues over
sum-
C.R.
at
year.
each
To
monses
at 874.
service of
require personal
each summons
MacMillan,
MacMillan
See also
174 Colo.
not be consistent with the purposes
would
Applying
482 P.2d
the Mul-
Municipal Court
securing
Rules in
test
of service now
lane
method
simplicity
procedure or eliminating un-
review,
practice
under
we conclude that the
expense
justifiable
delay.
The Munici-
affixing summonses
complaints
Rules were
pal
pro-
not intended to
illegally parked vehicles which are left
vide a basis for
serving
posses-
owner or
is a method
unattended
of service reason-
of unlawfully parked
sor
motor vehicles. A
provide
certain to
ably
of the viola-
requirement
personal
service for such
Although a summons
may
tion.
so served
violations would be impracticable and un-
always
be recеived due to outside
duly burdensome on Denver’s law enforce-
forces,
does not require that the
resources and
ment
de-
unreasonably
adopted method of service be absolutely
lay
charges.
the resolution of the
Prima
certain to
notice in every instance.
responsibility
facie
an unlawfully
Mullane v. Central Hanover Bank and
parked
motor vehicle
be imposed upon
Co., supra;
see
Trust
also MacMillan v.
registered
owner
a municipality’s
use
MacMillan,
addition,
if no re-
police power
enactment of
to the summons
sponse
is received
traffic ordinances.
Columbus v.
Traffic Violations Bureau within seven
*5
Webster,
327,
170 Ohio St.
principles process of due require personal process of due principles are satisfied parking service of summonses. In Mullane methods service and the notice of park- Co., v. Hanover Central Bank and Trust 339 ing violations currently рrovided by Denver. 306, 652,94 70 (1950), U.S. S.Ct. L.Ed.2d 865 we Accordingly, reverse the decision of the Supreme the United States Court set forth trial court on the issue of service. following test to applied be in determin ing whether the method of service utilized III. provide notice satisfies the requirements process:
of due
Patterson claims that
the immobili
“The means
of his vehicle
employed
zation
without notice and the
[to
notice]
must be such as one
right
desirous of
to a
actually
right
violated his
to due
informing the
might
guaranteed
absentee
of law
reasonably
by the Four
adopt
accomplish
it. Thе
Amendment
reasonable-
teenth
to the United States
ness and hence the
II,
constitutional validity
and Article
section 25 of
Constitution
chosen
method
be defended
We agree.
the Colorado Constitution.9
Mails,
8. Section 505.5 of the Denver
Code
States
the Traffic Violations Bureau
provides:
shall send another notice
mail to the own-
original
er of the vehicle to which the
Comply
“Failure to
with Notice Attached to
affixed, informing him
of the violation.”
Parked Vehicle.
If a violator of the restric-
stopping, standing
parking
tions on
or
under
precluded
addressing
9. We arе not
this
Main Division FIVE of this Revised Munici-
that it was not
on
issue
the fact
ruled
Code,
pal
does not
to a notice affixed
parties
since
this
court below
action
period
to such motor vehicle within a
pleadings.
raised the issue
their trial court
(7) days, by appearance
seven
at the Traffic
such,
properly
As
it is
before us at this time.
arranging
pay-
Violations Bureau and
Tri-County
Cf. Matthews v.
Water Conservan-
ment,
disposition
charge,
or other
of the
or
District, Colo.,
cy
(1980);
Board
Procеdural
1589,
90
1586,
29 L.Ed.2d
539,
possessory
prop
a
interest
91 S.Ct.
with
person
Francisco,
be
an
557
the state must
afforded
v.
(1971); Stypmann
seized
San
erty
Nichol,
no
for a
(9th
1977); Graff
opportunity
1338
Cir.
F.2d
Georgia
North
Finish
hearing.
tice of
While
(N.D.
974
Ill.
F.Supp.
370
601,
Di-Chem, Inc.,
95
419 U.S.
Inc. v.
ing,
temporarily
may only be
interest
owner’s
719,42
(1975); Armstrong
L.Ed.2d 751
S.Ct.
upon
the boot is removed
restricted
1187,
Manzo,
14
85 S.Ct.
fines
accumulated
of the
payment
Lounge
New Safari
L.Ed.2d
fee,
it does
diminish
a “boot”
P.2d
Springs, 193 Colo.
in vio
deprivation has occurred
that a
fact
Supreme
As the United
States
process:10
lation of
Shevin,
Fuentes v.
has stated in
bright
lines
draws no
process]
“[Due
U.S.
deрri-
day
day
or 50
three-day,
around
(1972):
tak-
Any significant
property.
vations
century
the central
“For more than
within the
by the State is
property
had
meaning of
Due Process Clause. Al-
of the
purview
rights are to
clear:
‘Parties whose
been
severity
dep-
length
though
heard;
entitled to be
affected are
be
would be
possession
of use or
rivation
right
they may enjoy
in order
determining
weigh
factor
another
It
equally
first be notified.’
they must
form of
appropriate
[is]
right
that the
to notice and
fundamental
determinative
not deemed
to be heard ‘must be
”
(Citations
some sort.’
hearing of
and in a
meaningful
at a
time
granted
Georgia Finishing,
”
Inc.
omitted.) North
(Citations
manner.’
omit-
meaningful
Inc.,
606, 95
Di-Chem,
at
S.Ct.
U.S.
ted.)
at
at
at 757.
722 L.Ed.2d
at 569-70.
enforced,
property
interests de-
interest
As now
individual’s
Secondly, the
procedure of
by the immobilization
prived
“boot” fee
pay
used to
money
505.11-1(15) of the Denver Munici-
section
for the removal
by Denver
collected
(1)
are twofold:
an interest in and
pal Code
device itself is also constitu
*6
vehicle;
(2)
an
the immobilized
use of
Landrieu,
Remm v.
tionally protected. See
in the “boot” fee collected
Den-
interest
(E.D.
1976).
La.
also
542
See
F.Supp.
418
the removal of the immobilization
ver for
Beckwith,
Pharmacies v.
Fabulous
Webbs
may
significant
Both interests
be
device.
446,
155,
First,
right to the contin
an owner’s
now under review
as the ordinance
asmuch
uninterrupted
use of his
possession
ued
the owner
whereby
no mechanism
provides
the
protected by
is
constitutional
immo
can
the
the automobile
process. A
person’s
of due
abili
provisions
depri
the
procedure
improper,
as
living well
bilization
to make a
as access
both
ty
payment
results from the
аnd amenities of life
vation which
the necessities
final.11
fee must be considered
on the
of an automobile
“boot”
depend
availability
the
1974) (tem-
Iwerks,
Nichols,
(N.D.
F.Supp.
Adjustment
974
Ill.
of Adams
135
370
vehicles).
578,
(1957).
impoundment
porary
of abandoned
537
Therefore,
Co.,
600,
because constitutionally protect- Mitchell v. W. T. Grant
416 U.S.
94
1895,
(1974);
interests are
40
private
ed
involved when an
S.Ct.
L.Ed.2d 406
New Sa
Lounge v.
Springs, supra.
is immobilized
fari
sec-
The United
has
505.11-1(15)
Supreme
long
of the Denver
States
tion
recognized
exception
general
rule
Code, we conclude thаt
the due process re-
deprivation
property requires
of a
quirements
hearing
no-
pre-deprivation hearing
extraordinary
provided.12
tice of
must be
where a
circumstances
valid governmental
a property
depri
Once
or liberty
justifies
is at stake which
postpon
interest
shown,
procedur
vation
fundamental
until after the event. Cale
process safeguards
al due
of notice and an
Co.,
ro-Toledo v. Pearson Yacht Leasing
416
to be
meaningful
heard “at a
663,
2080,
94 S.Ct.
40
U.S.
L.Ed.2d 452
meaningful
and in a
time
manner” are ab
Shevin,
(1974);
supra;
Fuentes
Boddie v.
However,
specific
solute.
procedures Connecticut,
371,
780,
91
28
S.Ct.
will
vary depending upon the na
cases,
L.Ed.2d 113
In such
the bal
Carson,
ture of each
Craig
case.
449
ancing approach recognizes that
the fiscal
(M.D.
Fla.
F.Supp. 385
See Mullane
pre-depriva
and administrative burden of a
Co.,
Hanover Bank
v. Central
and Trust
hearing may
outweigh
incremental
306,
U.S.
S.Ct.
L.Ed.2d 865
in fairness and accuracy resulting
benefits
determining
procedures
what
must be
from such a
especially
cases
satisfy
proc
afforded
constitutional due
large
which occur in
numbers
involve
or
requirements
particular cаse,
ess
in a
relatively little risk of error or temporary
Supreme
States
United
Court has formulat
deprivations.
Eldridge,
Mathews v.
supra.
balancing
test
weighs
ed
fol
Tribe, supra at
10-14.
See
§
lowing
(1)
three factors:
private
the kind of
case,
magnitude
In this
stake; (2)
at
interest
risk of an errone
private
temporary
interest
stake is the
deprivation of that
interest
ous
and the
the use of the
loss of
automobile and
value of
probable
additional or substitute
paid
funds
release of the vehicle.
risk;
procedures
reducing
(3)
Although
clearly
these are
inter
property
govеrnmental
interest
public
involved
process pro
ests sufficient to mandate due
the fiscal and
administrative burden
tection,
they are minimal and of limited
requirements
additional
Co.,
duration.
Mitchell v. W. T. Grant
See
Organization
entail. Smith
of Foster
New
supra;
Lounge
Safari
v. Colorado
Families,
Moreover,
the risk
erro
Springs,
(1977);
Love,
Dixon v.
431 U.S.
deprivation
neous
also minimal here.
It
(1977);
S.Ct.
L.Ed.2d 172
simple procedure
is a
to determine that a
Mathews v. Eldridge, 424
U.S.
violation
has occurred. See Sutton
Carson,
Craig v.
*7
Milwaukee,
(7th
of
The doctrine of whiсh Accordingly, expressed for the reasons to invoke in Denver seeks this case as a herein, judgment of the district court is liability judicial shield to extends only affirmed. officers, Stump v. Sparkman, 435 U.S. (1978),
98 S.Ct.
charge his my view majority opinion, pounded.2 to chal- opрortunity ample had Patterson that he was denied argument Patterson’s which offense underlying basic lenge whether law rises or falls on process due and failed being car’s booted in his resulted adequate he received was the notice to failure to Patterson’s to do so. to opportunity him an contest were affixed to his car which tickets The sum- illegal parking. charge contesting the fines which his foreclosed recipient advised the complaint mons and his car and obviated against applied were that, protest any charge you wish to you “If allowing him to a bond necessity post a referee between the may appear hearing pending. deprivation while a p.m. a.m. to 12:00 noon or 2 of 8:00 hours short, to a Patterson was not entitled In p.m.” 4:45 standing hearing and lacks post-deprivation failed, seven instanc- in each of Patterson of the ordi- unconstitutionality to raise es, opportunity himself of the to avail because, appear his failure to nance illegal parking charge contest complaints, to the summonses and response acts, act, his or failure to own therefore confеssed his in default and had he was having his jeopardy himself placed offense, illegal park- underlying guilt “booted.” ing. view, the summonses and com- my chal- ample opportunity had Patterson were sufficient notice of he received plaints charge lenge the hearing possible pen- and the right to original booting basis of the was the permit booting. impoundment alty entitled, He is not nor does to do so. failed oppor- notice of and the Having given been require, another hearing meaningful for a at a time tunity unjustified. as booting manner, require- meaningful in a have been ments essence, majority opinion counte- Shevin, Fuentes v. met. See ignoring of a citizen in acts nances the scoff law who habitu- law and rewards ig- parking regulations and ally violates opinion correctly points out The court’s placed on his car. tickets nores prop- with an “interest person that a op- must be afforded an erty to be seized the dis- judgment reverse the I would for a portunity court. trict hearing.” It notes that the owner of has a to the use of his an automobile an interest fee he
property and boot for the removal of the boot. It paid
has that the Denver ordinance is
then concludes provides because it no
unconstitutional whereby the owner of the auto-
mechanism challenge, post-deprivation can
mobile booting procedure improper.
Further, it condemns the ordinance because obtaining exists for release of provision
no by posting depriva- bond while a
a vehicle pending. LAW, following ER BY lan- PENALTIES AS PRESCRIBED summons contained the 2. The guage: OF THE THE IMPOUNDING INCLUDING THE ISSUANCE INVOLVED AND VEHICLE FAILURE “IMPORTANT: TO RESPOND THE ARREST OF FOR A WARRANT OF 30 DAYS OF ISSUE DATE WILL WITHIN VIOLATOR.” THE THE SUBJECT VIOLATOR TO SUCH OTH-