Langendorf v. City of Chicago et al

Filing 31

MEMORANDUM Opinion and Order: For the reasons stated in this opinion, defendant City of Chicago's motion to dismiss 16 is denied. This action is set for a status hearing at 9:15 a.m. on February 13, 2017 to discuss further proceedings in the case. Signed by the Honorable Milton I. Shadur on 2/6/2017:Mailed notice(clw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ROBERT LANGENDORF,
Plaintiff,
v.
CITY OF CHICAGO, et al.,
Defendants.

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Case No. 16 C 8538

MEMORANDUM OPINION AND ORDER
Robert Langendorf ("Langendorf") has brought this action against the City of Chicago
("City") and Serco Inc. ("Serco"), a company that contracts with the City to provide parking
enforcement services, because he is peeved (quite understandably from his perspective) at having
received multiple citations for what he views as a single parking violation -- a peeve that was
exacerbated (this time understandably from anyone's perspective) when the City, after
Langendorf had already paid all of the tickets in full, proceeded to continue "collection" efforts,
threaten him with penalties and sanctions (!) and actually boot his car!! In response the City has
moved to dismiss Langendorf's Complaint for its asserted failure to state a viable claim. Because
of the extraordinary shabbiness of the actions to which Langendorf has been subjected,
particularly after he had paid the disputed tickets in full, this opinion explains why a federal
court cannot provide him relief for all of his grievances, although the City's motion must be
denied because a portion of his claims withstands disposition at this threshold stage of the case.

Background
Langendorf's Complaint 1 states that he received three parking tickets within a 36 hour
period for conduct that he acknowledges constitutes a violation of Chicago Municipal Code
§ 9-76-160(f), 2 which prohibits drivers from parking within the city limits if their vehicles do not
display proper registration for the current period. While parked at 869 West Lill Avenue in
Chicago on September 1 and 2, 2014, 3 Langendorf's car received three tickets, first at 12:11 p.m.
and later at 7:49 p.m. on September 1, then at 11:23 p.m. on September 2 (¶¶ 13 through 16).
Each ticket carried a $60 fine (¶ 18). On December 3 the City issued a Notice of Default
Determination ("Notice") for the first ticket, and on December 17 it issued Notices for tickets
two and three (¶ 19). Langendorf says he paid the first ticket in full on December 19 (¶ 20).
Less than two weeks later, on January 1, the City issued a Notice imposing an additional $60
penalty for late payment of the first ticket (¶ 21), and 15 days later the City issued Notices
imposing like penalties for the second and third tickets, thus seeking a total payment of $360 for
all three tickets (¶ 22). Then on January 22 the City issued a vehicle seizure notice for unpaid
violations (¶ 23). On January 27 Langendorf paid the entire amount sought by the City,
including the penalties (¶ 24).
Despite having received payment in full, the City issued a collection notice on
February 15, again seeking payment of $120 for each of the three tickets (a new total of $360)
1

Citations to paragraphs of the Complaint simply take the form "¶ --."

2

Further citations to that Code will take the form "Code § --," omitting the initial
number "9," while future citations to the Illinois Administrative Law, found at 735 ILCS 5/3,
will take the form "Act § --," omitting the prefatory "735 ILCS 5/3."
3

All dates referred to here bridged the period between September 2014 and June 2015,
so that the omission of year references in this opinion cannot cause any confusion.
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(¶ 25). As of March 27 the City's website reflected that all three tickets had been paid (¶ 26-27), 4
but it continued its "collection" (really extortion?) efforts and threatened Langendorf with
additional penalties (¶ 28). On March 27 Langendorf's car was booted, depriving him of its use
for a "considerable time" (¶¶ 29, 30). Then on June 9 the City Law Department got into the act,
sending Langendorf a collection letter that sought payment of already-paid tickets two and three
and that warned the "City may garnish your wages and bank accounts, file a lien against your
property, and notify the credit bureaus, any of which may affect your credit" (¶ 31).
Langendorf asserts that he had no forum in which he could challenge the imposition of
late fees, booting and continued collection threats, because the time to contest the tickets had
expired (¶ 32). And to boot 5 he adds that the City has a pattern and practice of issuing repeat
citations for a single ordinance violation, imposing penalties and continuing collection efforts
after the underlying fines have been paid in full (¶¶ 34, 35).
Legal Standards
Under Rule 12(b)(6) a party may move for dismissal for the "failure to state a claim upon
which relief can be granted." Familiar Rule 12(b)(6) principles require the District Court to
accept as true all of Langendorf's well-pleaded factual allegations and to view those allegations

4

City's website entries are exceedingly ironic in light of the ensuing conduct on its part
and that of its Law Department:
26.

As of March 27, 2015, the City's official website reflected that all three
tickets had been paid.

27.

On April 1, 2015, the City's official website stated, for each of the three
tickets, "Thank you for your payment. No further action is required for
this ticket."

5

Bad pun intended.
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in the light most reasonably favorable to him as the nonmovant (Lavalais v. Vill. of Melrose
Park, 734 F.3d 629, 632 (7th Cir. 2013)). But "legal conclusions or conclusory allegations that
merely recite a claim's elements" are not entitled to any presumption of truth (Munson v. Gaetz,
673 F.3d 630, 632 (7th Cir. 2012)).
In the past decade the Supreme Court made an important change in the evaluation of
Rule 12(b)(6) motions via what this Court regularly refers to as the "Twombly-Iqbal canon," a
usage drawn from Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), as more finely tuned in
Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam), and Ashcroft v. Iqbal, 556 U.S. 662
(2009)). That canon has introduced the concept of "plausibility" into the analysis, and in that
respect our Court of Appeals has "interpreted Twombly and Iqbal to require the plaintiff to
provid[e] some specific facts to support the legal claims asserted in the complaint" (McCauley v.
City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011) (internal quotation marks omitted)). As
McCauley, id. went on to reconfirm, claimants "must give enough details about the
subject-matter of the case to present a story that holds together."
Because the focus of Rule 12(b)(6) motions is on the pleadings, they "can be based only
on the complaint itself, documents attached to the complaint, documents that are critical to the
complaint and referred to in it, and information that is subject to proper judicial notice"
(Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012)). But a nonmovant has
more flexibility, for it "may elaborate on [its] factual allegations so long as the new elaborations
are consistent with the pleadings" (id.).
Procedural Due Process
Procedural due process imposes constraints on government actions that deprive
individuals of liberty or property interests (Mathews v. Eldridge, 424 U.S. 319, 332 (1976).
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Mathews, id. at 335 teaches that determining the minimum procedure for a given deprivation
requires consideration of three 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.
Here the Complaint details how Chicago's parking enforcement deprived Langendorf of his
property. This opinion's analysis therefore turns to whether the procedures decreed by the
Chicago Municipal Code ("Code") and the Illinois Administrative Review Law ("Act") provided
Langendorf with sufficient procedural safeguards in light of the private and governmental
interests at stake.
To state a procedural due process claim, a plaintiff must point to a specific shortcoming
in the procedures that caused an unlawful deprivation, not simply to the mistaken or
unauthorized conduct of those administering the policies (Leavell v. Illinois Dep't of Natural
Resources, 600 F.3d 798, 804-05 (7th Cir. 2010). Specific shortcomings can be demonstrated by
showing, for example, that a procedure lacks adequate safeguards or a post-deprivation remedy
to prevent a mistake or unauthorized conduct (id. at 805-06). Or, when a plaintiff suffers an
erroneous deprivation, he or she may also point to procedures that afford government employees
a level of discretion such that their wrongful actions can be considered "authorized" by the
governmental employer (id. at 806).
Just as important, to bring a federal lawsuit challenging the constitutional sufficiency of
certain procedures a plaintiff must have actually availed himself or herself of those procedures.

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Zinermon v. Burch, 494 U.S. 113, 126 (1990) teaches that in the context of due process, a failure
to exhaust remedies is fatal to the claim:
The constitutional violation actionable under § 1983 is not complete when the
deprivation occurs; it is not complete unless and until the State fails to provide
due process.
Langendorf contends that the City does not provide constitutionally sufficient process for
challenging late fees that are wrongfully levied on tickets. But his claim fails for two reasons.
First, the Code and the Act do codify procedures for challenging all tickets, fines and fees
(1) both at the administrative level and in the state courts and (2) both before and after a
respondent's fines and fees become due. Second, Langendorf did not avail himself of those
procedures.
As a preliminary matter, Van Harken v. City of Chicago, 103 F.3d 1346 (7th Cir. 1997)
held that in general the civil procedural safeguards that the City provides to parking violation
respondents are constitutionally sufficient. 6 But because Van Harken does not specifically
address the paths that were available to Langendorf to deal with the problems with the City about
which he complains, they will be summarized below.
When a ticket is issued, the respondent has seven days to either pay the fine or request an
administrative hearing (Code § 100-050(a)). If a hearing is not requested and the ticket is not

6

Van Harken, 103 F.3d at 1353 conceded that it was unimpressed with a parking ticket
respondent's appellate remedy, which at the time "costs more to file than the maximum gain that
the appeal can yield," but the Court of Appeals did not hold that the subpar nature of the
appellate remedy rendered the City's parking violation procedures constitutionally deficient.
Today, however, the filing fee for a case claiming damages that do not exceed $250 is $150,
while the fee for a case claiming between $250 and $1000 is $203 (705 ILCS 105/27.2a). Under
the circumstances of this case, in which Langendorf would have to resort to the law to protect
himself from a plainly groundless and unlawful threat by the City, the implications from Van
Herken must be kept in mind in the discussion that follows.
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paid, the City issues a second notice of violation (Code § 100-050(d)(1)). If the respondent does
not respond to that second notice by paying the fine or requesting a hearing within 14 days, the
City then enters a determination of liability in the amount of the fine listed on the second notice
(id.). If the fine is not paid within 25 days of the determination of liability, the respondent is
automatically subject to penalties for late payment "equal to the amount of the fine for the
relevant violation" (Code § 100-050(e)). Here Langendorf does not assert in his Complaint that
he requested a hearing to contest his first or second notice of violation for any of his three
tickets.
Once a determination of liability is issued, the determination becomes final for purposes
of judicial review in the state Circuit Court under the Act, either on the finding an administrative
law officer (a lawyer, not a judge -- see Van Harken, 103 F.3d at 1350) or on the expiration of 21
days to file a petition to set aside the determination (Code § 100-090(a), (b), (c)). Administrative
review can be commenced by "the filing of a complaint and the issuance of a summons within 35
days from the date that a copy of the decision of the decision sought to be reviewed was served
upon the party affected by the decision" (Act § 103). Langendorf claims in this action that he
was wrongfully issued a determination of liability and late fee for his first ticket and that he paid
his second and third tickets, including late fees, 12 days after the City entered its final
determination as to those tickets (¶¶ 22, 24). But he does not state that he filed for administrative
review of any of those notices, which he had the right to do under the Act.
Langendorf asserts that even after he paid his tickets the City issued him a vehicle seizure
notice (¶ 22). For that too the Code and state law provide an avenue of relief that Langendorf did
not pursue. In the event that an owner of a vehicle accumulates three or more final
determinations of liability, the City will send a notice of impending immobilization pursuant to
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Code § 100-120 (b), and Langendorf confirms that he received such a notice on January 22
(¶ 23). Next an owner has 21 days to challenge the validity of the notice by requesting a hearing
and submitting documentary evidence that would disprove liability (Code § 100-120(b)). That
evidence can be based, among other things, on the ground that all fines and penalties for the
citations have been paid in full (id. § 100-120(b)(1)). Rather than challenge the vehicle
immobilization notice pursuant to that section, Langendorf paid the tickets and late fees "under
protest" on January 27 (¶¶ 24, 33).
After he had paid the fines and fees in full, the City nonetheless booted his car on
March 27 (¶ 29). When a vehicle is thus immobilized the City must affix a notice to the vehicle
that states how the owner may obtain an immobilization hearing (Code § 100-120(c)). So
Langendorf could have requested a hearing to contest the immobilization of his vehicle within 21
days (id. § 100-120(e)), but again he failed to avail himself of that opportunity. In that respect a
successful hearing could have spared him the application of the extensive costs associated with
the immobilization (see id. 100-120(d)) as well as the purported collection costs and attorney's
fees that had allegedly remained (but were not in fact) outstanding on the final determinations for
each ticket (id. § 100-120(d)), but neither that hearing nor any other procedure devised by the
City would have spared him the financial and other harms that he sustained in consequence of
the City's and its lawyers' unlawful collection efforts and threats, which had continued up to that
point despite his already having paid the tickets and late fees in full.
In reviewing an agency decision the Circuit Court has the power to stay the
administrative decision, affirm or reverse the decision in whole or in part, or reverse and remand
if the agency has held a hearing (Act §§ 111(a)(5), (6)). Final decisions of the Circuit Court in
actions to review an administrative decision are reviewable by appeal just as any other civil case
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(Act § 112). Thus if Langendorf's rights prescribed by the Code were not vindicated at the
Circuit Court level, he could have appealed the decision all the way up to the Illinois Supreme
Court and possibly even to the United States Supreme Court.
But the difficulty with all of this is that the procedural paths just described require the
investment of a good deal of time and money -- and though it may not be overly troubling to
require someone to take such steps as the result of a self-inflicted wound (the violations of a
quite reasonable ordinance on successive days), the City has really not come forward with a
showing that the procedures -- and more importantly the remedies -- available to Langendorf
comport with procedural due process as to the aspect of his case that challenges the City's
conduct after he had paid all of the tickets, including penalties, and the City and its Law
Department had nevertheless continued to hound him in an appalling manner though fully aware
of such full payment (see n.4).
Indeed, nothing in the Code (and hence nothing in the Act, which is derivative of the
Code in procedural terms) provides any real process to provide relief from the City's (and its
lawyers') outlaw activity. So in the absence of access to a judicial proceeding such as this one, in
a real world sense Langendorf will not only have been deprived of due process -- he will be
deprived of any process at all.
Hence the City's motion cannot be granted, and because this action is only at the incipient
pleading stage the Complaint will be kept intact until further proceedings make clear whether
other aspects of Langendorf's claim may be entertained in conjunction with the portion that has
been dealt with here. That said, this opinion turns to other issues posed by the parties to see
whether any other roadblocks would stand in the way of a judgment in the City's favor on those
other aspects.
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As stated at the outset of the Background section, Langendorf received three tickets over
a 36 hour period, each at a time when he was parked in the same parking space, for his having
failed to comply with the City ordinance that requires every car parked within its limits to
display proper and current registration. 7 Pointing to Code § 100-030(b), which provides for
issuance of a ticket "whenever any vehicle exhibits a compliance violation," the City contends
that each issuance was lawful (C. Mem. 4). 8 Langendorf urges that the Code provision is
unconstitutionally vague because it "clearly causes the type of arbitrary and discriminatory
enforcement" that caused him to receive three successive tickets for what he views as the same
violation (L. Resp. Mem. 9-10).
Laws are impermissibly vague if they fail to "provide a person of ordinary intelligence
fair notice of what is prohibited" (United States v. Williams, 553 U.S. 285, 304 (2008)). FCC v.
Fox Television Stations, Inc., 132 S. Ct. 2307, 2309 (2012) addresses not one but two due
process concerns: "[r]egulated parties should know what is required of them so they may act
accordingly" and "precision and guidance are necessary so that those enforcing the law do not act
in an arbitrary or discriminatory way." But due process "does not demand perfect clarity and
precise guidance" (Hegwood v. City of Eau Claire, 676 F.3d 600, 603 (7th Cir. 2012) (internal
quotation marks omitted)), nor does due process require that terms be defined in a law or statute
if their "ordinary meaning . . . clearly is understandable to a person of common intelligence"

7

Though the record does not reflect whether the car occupied that space continuously
during that time frame, or whether instead Langendorf had driven it away at some point and then
returned it to the space, the legal analysis that follows in the text would arrive at the same
destination in either event.
8

Citations to the City's brief in support of its motion take the form ""C. Mem," while
citations to Langendorf's responsive brief take the form "L. Resp. Mem. --."
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(Discount Inn, Inc. v. City of Chicago, 72 F.Supp.3d 930, 937 (N.D. Ill. 2014), aff'd 803 F.3d
317 (7th Cir. 2014)).
As Langendorf would have it, the inclusion of the word "whenever" in Code
§ 100-030(b), which assertedly allowed officials to issue him three tickets in the span of 36 hours
for the same infraction, allows parking enforcement personnel to determine arbitrarily how many
tickets to write (L. Resp. Mem. 9-10). But under the standards set forth by the Supreme Court
and our Court of Appeals, Langendorf's claim that Code § 100-030(b) is unconstitutionally
vague in that respect falls flat.
Although the word "whenever" is not defined anywhere in the Code, its ordinary meaning
is certainly perceptible to a person of average intelligence (Discount Inn, 72 F.Supp.3d at 937).
Webster's Third New Int'l Dictionary 2602 (1986) lists "whenever" as a conjunction and defines
it as "at any or all times that: in any or every instance in which." Based on its common usage
and that definition, the term "whenever" gives sufficient notice to Langendorf that he may be
issued a ticket "at any and every time" that his car is parked without proper registration.
Importantly, Langendorf does not assert anywhere in the Complaint that he was innocent
of the compliance violation at the time that any of the three tickets was issued during the
September 1 and 2 time period that his car was parked on West Lill Avenue. Furthermore, the
issuance times of the three tickets would appear to indicate that enforcement officers simply
returned to the area periodically to check for ordinance violations. That course of events was
reasonably foreseeable based on language in the Code provision, and as such Code § 100-030(b)
is not unconstitutionally vague.
Lastly, Langendorf also contends that the City has exceeded its home rule authority
because provisions of the Code are inconsistent with the Illinois Vehicle Code (P. Resp.
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Mem. 14). But that state law claim need not be addressed at this time because it is not yet certain
(1) whether Langendorf failed to state a federal claim or (2) whether in the event of such a failure
the half-century-old (but still controlling) principle established by United Mine Workers of Am.
v. Gibbs, 383 U.S. 715, 726 (1966) might call for leaving the state law issue for state court
determination.
Conclusion
For the reasons stated in this opinion, the City's motion to dismiss the Complaint
(Dkt. No. 16) is denied. This action is set for a status hearing at 9:15 a.m. on February 13, 2017
to discuss further proceedings in the case.

__________________________________________
Milton I. Shadur
Senior United States District Judge
Date: February 6, 2017

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