Clark et al v. Humane Society of Carroll County, Inc. et al

Filing 10

MEMORANDUM. Signed by Judge William M Nickerson on 7/13/11. (hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

DAWN K. CLARK et al.
v.
HUMANE SOCIETY OF CARROLL
COUNTY, INC. et al.
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Civil Action No. WMN-11-108

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MEMORANDUM
Before the Court is Defendants’ Motion to Dismiss and
Opposition to Request for Certification as Class Action.
No. 3.

The motion is fully briefed.1

ECF

Upon a review of the

papers filed and the applicable case law, the Court determines
that no hearing is necessary, Local Rule 105.6, and that the
motion should be granted.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs Dawn Clark and Elizabeth Tiedemann bring this
action challenging the constitutionality of certain provisions
of the Carroll County Code (Code) which regulate the care and
control of animals.

Code §§ 81-1 et seq.

Chapter 81 of the

Code contains numerous provisions regarding, inter alia, the

1

Plaintiff has filed a motion for leave to file a surreply,
arguing that Defendants’ Reply raised new arguments and
contentions. ECF No. 7. As explained below, see n.10, the
Court finds that these alleged “new” arguments and contentions
were fairly raised by Defendants in their initial motion and
that Plaintiffs have not shown the need for a surreply.
Plaintiffs’ motion will be denied.

licensing, restraint, and care of domestic animals.

The two

provisions cited by Plaintiffs in their Complaint are the
provisions requiring dogs to be licensed and dog owners to keep
their dogs restrained.
81-2 & 81-5).

Compl. ¶ 7(A) and (B) (citing Code §§

According to the Complaint, Carroll County has

contracted with a private entity, Humane Society of Carroll
County, Inc. (HSCC), to enforce these provisions.

Plaintiffs

have named as Defendants: HSCC; Carolyn Ratliff, the Director of
HSCC; HSCC Officers G. Michael Keiner, Brian Rupp, Mark Miller,
and Karen Baker; and the Board of County Commissioners of
Carroll County (the County).
The enforcement provisions in this section of the Code that
are at issue here are relatively straightforward.

Subsection

81-16(A) permits the County to designate persons or agencies to
enforce this portion of the Code.2

According to the Complaint,

and as acknowledged by Defendants, the County has designated
HSCC to perform this role pursuant to that authority.
Subsection 81-16(B) permits Animal Control Officers, in their

2

This subsection provides:

The civil and criminal provisions of this chapter
shall be enforced by those persons or agencies
designated by the Board of County Commissioners of
Carroll County. It shall be a violation of this
chapter to interfere with an Animal Control Officer in
the performance of his or her duties.

2

discretion, to issue a “notice of violation” to any persons in
violation of this section of the Code, or other animal control
laws or regulations.

The “notice of violation” imposes a fine.

The recipient of the notice has the option of paying the fine
within 72 hours in full satisfaction of the violation.
If the recipient of the notice elects not to pay the fine,
a criminal charging document is initiated and a criminal trial
is held in the state District Court.

If convicted in the

criminal proceedings, “the defendant shall be punished as
provided in § 81-17 of this chapter.

The fine assessed by the

Animal Control Officer, as herein provided, may be increased or
decreased by the Court upon conviction as aforesaid.”
County Code § 81-16(B).

Carroll

Section 81-17 specifies that one found

guilty of violating the County’s animal control regulations
“shall be deemed guilty of a misdemeanor and shall be punished
by confinement in the county jail for not more than 30 days or
by a fine up to $500.00, or both.

If any violation be

continuing, each day's violation shall be deemed a separate
violation.”

Id. § 81-17.

Plaintiffs take issue with many aspects of this enforcement
scheme.

They complain that HSCC officers arbitrarily set the

fines when issuing the notices.

Compl. ¶ 13(C).

They complain

that much of the revenue raised by payments of the fines goes to
HSCC to pay for its operations, thus creating a financial
3

incentive to assess and collect fines.

Id. ¶¶ 25, 35.

They

complain that it is a policy of HSCC not to identify the
“complaining witnesses” who reported the alleged violation to
HSCC.

Id. ¶ 52.

Plaintiff’s primary complaint, however, is

that this scheme allows HSCC to use the threat of criminal
prosecution to compel the payment of fines.

Compl. ¶ 33.

As to HSCC’s action toward her personally, Plaintiff Clark
alleges that “[o]n at least one occasion in 2010,” she was
issued citations for alleged violation of the Code.

Id. ¶ 41.

Clark does not specify what those violations were alleged to be,
but states that the citations demanded fines amounting to
“hundreds of dollars.”

Id. ¶ 42.

Clark did not initially pay

the fines and criminal charges were brought.

Before the

criminal case came to trial, however, Clark pleaded guilty,
accepted probation before judgment, and paid the fines.

Id. ¶

46.
Plaintiff Tiedemann alleges the following concerning her
interactions with HSCC.

On three separate occasions during the

winter of 2008 and spring of 2009, Tiedemann was issued
citations for alleged violations of the Code.

Like Clark,

Tiedemann does not specify the nature of the alleged violations,
but states that the citations demanded payment of fines “ranging
from $50 to $300.”

Id. ¶ 51.

When Tiedemann elected not to pay

the fines, HSCC officers filed Applications for Statement of
4

Charges.

Before the case came to trial, Tiedmann paid the fines

“under protest,” and a nolle prosequi was entered by the state
on all charges.
Plaintiffs filed this suit on January 13, 2011, and the
suit asserts two counts: Count I brings an “Action for
Deprivation of Civil Rights (42 U.S.C. § 1983);” and Count II
brings an “Action for Attorney’s Fees (42 U.S.C. § 1988).”

The

§ 1983 count actually encompasses a number of different claims.
Plaintiffs allege: (1) violations of their Procedural Due
Process Rights, as protected by the Fourteenth Amendment; (2)
violations of their right to be free of excessive fines imposed
arbitrarily, as protected by the Eighth Amendment; (3)
violations of their “right to be secure in persons, houses,
papers and effects against unreasonable seizures without a
finding of probable cause supported by oath or affirmation,” as
guaranteed by the Fourth Amendment; and (4) violations of the
“right of an accused to know who are, and to confront, the
witnesses against him or her, and to be presented with a proper
criminal complaint/charging document with notice of the nature
and cause against them upon accusation/charge of a crime,” as
protected by the Sixth Amendment.3

3

In addition to attorneys’

Plaintiffs also included in the Complaint a request for the
certification of a class of Plaintiffs composed of “all
similarly situated residents of Carroll County, past and
present, who have paid fines to the County or HSCC during the 3
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fees, Plaintiffs seek in this action a return of all fines
collected and “money damages in the amount to be determined by
evidence (but to the extent an exact amount is needed in this
pleading then $5,000,000).”

Compl. at 15.

Defendants have

moved to dismiss the Complaint in its entirety.
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 8(a)(2), pleadings
must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.”

Rule 8 does not

require “detailed factual allegations,” but “naked assertions,
devoid of further factual enhancement” are insufficient.
Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 St. Ct. 1937, 1949
(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)) (internal quotations omitted).

Likewise, unadorned

accusations and rote recitation of a cause of action’s elements
fail to meet the requisite pleading standard.

Id.

Instead, to survive a Rule 12(b)(6) motion to dismiss, “a
complaint must contain sufficient factual matter . . . to state
a claim to relief that is plausible on its face.”

Id.

In this

context, the plausibility standard demands more than the mere
possibility of a defendant’s liability.

Id.

To wit, “[a] claim

has facial plausibility when the plaintiff pleads factual
years prior to the filing hereof.” Compl. ¶ 63. Because the
Court finds that the claims of the named plaintiffs must be
dismissed, it need not reach the issue of class certification.
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content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”

Id.

When evaluating the sufficiency of a pleading, courts are
required to construe all facts in the light most favorable to
the plaintiff.

Ibarra v. United States, 120 F.3d 472, 474 (4th

Cir. 1997).
III. DISCUSSION
A. The Heck Doctrine
As a preliminary challenge to the Complaint, Defendants
argue that all of Plaintiffs’ claims are barred by a doctrine
announced by the Supreme Court in Heck v. Humphrey, 512 U.S. 477
(1994).

In Heck, the Supreme Court held that a § 1983 action

for monetary damages cannot be brought if prevailing in that
action would “necessarily require the plaintiff to prove the
unlawfulness of his conviction or confinement.”

Id. at 486.

Therefore, before a § 1983 could be brought, the plaintiff must
establish that the criminal case was favorably terminated, i.e.,
“reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s
issuance of a writ of habeas corpus.”

Id. 486-87.

The Fourth Circuit, however, has recognized an exception to
the Heck doctrine that allows a plaintiff to obtain relief under
§ 1983 “where an individual would be left without any access to
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federal court if his § 1983 claim was barred.”
Johnson, 535 F.3d 262, 267 (4th Cir. 2008).

Wilson v.

In reaching that

holding, the Fourth Circuit acknowledged that the Supreme Court
precedent on which it relied is not as clear as it might be.
The Fourth Circuit relied on what is arguably dicta in a five
justice plurality opinion in Spencer v. Kemna, 523 U.S. 1
(1998).

Nevertheless, the Fourth Circuit has recognized this

exception and that is the precedent to which this Court is
bound.
Wilson arose in the context of a prisoner who filed his §
1983 claim after the expiration of his prison sentence.

Because

Wilson was no longer in custody, habeas relief was unavailable
to him.

Based upon these specific facts, Defendants argue that

the Wilson exception should be limited to individuals who were
convicted to a term of imprisonment, incarcerated and thus
entitled at some previous time to habeas relief, but who have
been released and now no longer can file a habeas petition.
Reply at 2.

The Wilson exception, in Defendants’ view, is

inapplicable to those like Plaintiffs who were not convicted but
pled guilty or otherwise admitted guilt because, those who have
pled guilty never had a right to habeas relief in the first
place.

Id. at 3.

It is not clear that the Wilson exception should be read so
narrowly.

First, while a guilty plea generally bars habeas
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relief, it does not bar a constitutional claim that “goes to the
very power of the State to bring the defendant into court to
answer the charge brought against him.”
417 U.S. 21, 29 (1974).

Blackledge v. Perry,

If meritorious, Plaintiffs’ claims

arguably might fall within that class of claims.

In addition,

Plaintiffs raise several other arguments for the inapplicability
of the Heck doctrine including: (1) their contention that,
because they voluntarily paid the fines before going to trial,
there are no “convictions” to be undermined; and (2) that
assuming there are “convictions,” this § 1983 action does not
undermine the propriety of those convictions.
It is difficult if not impossible to determine the impact
of the Heck doctrine on Plaintiff’s claims at this stage of the
litigation.

Because the Complaint does not even identify the

nature of the Plaintiffs’ violations, it is difficult to
conclude, with certainty, how Plaintiffs’ § 1983 claims would
undermine those “convictions.”

It is not clear from the

Complaint what it means that Plaintiff Tiedemann pled guilty
“under protest.”

Because of these difficulties and

uncertainties and, more significantly, because Plaintiffs’
constitutional claims are clearly without merit, the Court will
assume without deciding that Plaintiffs can escape the Heck
doctrine and will proceed to examine Plaintiffs’ claims.

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B. Eighth Amendment
As an initial challenge to Plaintiffs’ Eighth Amendment
claim, Defendants argue that the Eighth Amendment excessive
fines provision simply does not apply to the States through the
Due Process Clause of the Fourteenth Amendment, citing McDonald
v. City of Chicago, 130 S. Ct. 3020, 3035 n.13 (2010).

Mot. at

15.
In McDonald, the Supreme Court considered whether the Second
Amendment right to keep and bear arms was extended to the States
through the Due Process Clause.

In resolving that issue, the

Court summarized those rights guaranteed by the Bill of Rights
that have been held to meet the requirements for protection
under the Due Process Clause, see id. at 3035 n.12, and those
few about which the Court has yet to decide if they would be
incorporated.

See id. 3035 n.13.

While the Supreme Court noted

that it never decided whether the Eighth Amendment’s prohibition
of excessive fines applied to the States, nothing in the opinion
inferred that this question would be answered in the negative.
Given that the Court’s announced criteria for incorporation of a
right is “whether a particular Bill of Rights guarantee is
fundamental to our scheme of ordered liberty and system of
justice,”

McDonald, 130 U.S. at 3034 (emphasis in original),

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this Court is inclined to conclude that the Supreme Court would
find the excessive fines provision applicable to the States.4
This Court need not ultimately decide the issue, however,
as the fines at issue in this action are clearly not excessive.
A penalty violates the Excessive Fines Clause if it is “grossly
disproportional” to the gravity of the offense.

See United

States v. Bajakajian, 524 U.S. 321, 334 (1998).

Two

considerations in the “grossly disproportional” analysis are
legislative intent and the gravity of the offense relative to
the fine.

Id. at 336-37.

Here, Plaintiffs seem to carefully avoid in their Complaint
even identifying the provisions of the Code for which they were
fined.

Because the Complaint only cites the specific provisions

related to dog licenses and dog restraint, see Compl. ¶ 7,
Defendants assumed in their motion that it was for violations of
these provisions that Plaintiffs were cited.
4

Plaintiffs confirm

Several years before McDonald, in dicta and without discussion,
the Supreme Court had stated that “the Due Process Clause of the
Fourteenth Amendment to the Federal Constitution . . . makes the
Eighth Amendment’s prohibition against excessive fines and cruel
and unusual punishments applicable to the States.” Cooper
Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 434
(2001). Numerous courts have cited to the Cooper Industries
decision as holding that “[t]he Eighth Amendment's prohibition
against excessive fines applies to the states through the Due
Process Clause of the Fourteenth Amendment.” Qwest Corp. v.
Minnesota Public Utilities Comm’n, 427 F.3d 1061 (8th Cir.
2005); Conley v. City of Dunedin, Civ. No. 08-1793, 2009 WL
812061 5 (M.D. Fla. Mar. 25, 2009) (same); King v. Ridley
Township, Civ. No. 07-704, 2007 WL 2071871 (E.D. Pa. July 17,
2007) (same).
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that in their Opposition.

Opp’n at 20 n.13.

Plaintiffs are

also somewhat cryptic as to the amount of their fines.
Plaintiff Clark alleges that the citations issued to her
assessed fines equal to “hundreds of dollars” but the Complaint
fails to indicate how many citations she received and for how
many violations.

Plaintiff Tiedemann alleges she received

citations on three separate occasions demanding payment of fines
“ranging from $50 to $300,” but, like Clark, Tiedemann does not
correlate those amounts to specific alleged violations.
Plaintiffs do not even attempt to argue that fines of under
$300 are “grossly disproportional” to the alleged offenses.
They actually concede that the amounts of the fines “may not be
large or onerous, on their face.”

Opp’n at 20.

Instead, they

assert without citation to any authority5 that, “any fine
assessed without due process is, by definition, excessive.”
at 19.

Id.

The alleged violation of due process, however, is a

separate constitutional question which will be addressed below.
As to Plaintiffs’ excessive fines claim, the Court finds
that fines in the amount alleged are clearly in line with the
County’s interest in protecting the public health, safety, and
welfare and the costs attendant to such a regulatory program.
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Plaintiffs assert that they believe this is a “logical
corollary” to the holding in McDonald that links the extension
of the protection of rights to actions of the states and the Due
Process Clause. Id.
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C. Procedural Due Process
To establish a violation of procedural due process, a
plaintiff must show that (1) she had a property interest (2) of
which the defendant deprived her, (3) without due process of
law.

Sunrise Corp. of Myrtle Beach v. City of Myrtle Beach, 420

F.3d 322, 328 (4th Cir. 2005).

Procedural due process requires,

at a minimum, fair notice and an opportunity to be heard.
Mathews v. Eldridge, 424 U.S. 319, 333 (1976).

Beyond the

minimum requirements of notice and an opportunity to be heard,
due process is “flexible and calls for such procedural
protections as the particular situation demands.”
Brewer, 408 U.S. 471, 481 (1972).

Morrissey v.

Furthermore, the Fourth

Circuit has held that “to determine whether a procedural due
process violation has occurred, courts must consult the entire
panoply of predeprivation and postdeprivation process provided
by the state.”

Tri-County Paving, Inc. v. Ashe County, 281 F.3d

430, 436 (4th Cir. 2002).
Plaintiffs contend that, beyond their property interests in
the fines assessed against them, they were deprived of the
following liberty interests without due process:
(1) To be free from arbitrary restraints on their
conduct;6

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As support for this liberty interest, Plaintiffs cite Justice
Harlan’s dissent in Poe v. Ullman, 367 U.S. 497 (1962), a
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(2) To the possession and control of their own person,
free from all restraint or interference of others,
unless by clear and unquestionable authority of law;7
(3) To freedom from arbitrary arrest and detention;8
(4) To be free from government punishment unless and
until proved guilty beyond a reasonable doubt at a
criminal trial conducted in accordance with all
relevant constitutional guarantees.
Opp’n at 15.
The basis of Plaintiffs’ contention that these first three
liberty interests were violated apparently relates to the manner
in which they were handed the notices of violations.

Each

Plaintiff alleges that, while “not taken into custody by the
officer, she was ‘arrested’ in that the armed and uniformed

decision addressing the constitutionality of a statute
prohibiting the use of contraceptives.
7

As support for this liberty interest, Plaintiffs cite Union
Pac. Ry. Co. v. Botsford, 141 U.S. 250 (1891), a decision which
discussed whether a plaintiff in a personal injury case can be
compelled to submit to a surgical examination as to the extent
of her injuries. The decision does not mention due process or
liberty interests. Plaintiffs note that Botsford was quoted in
Terry v. Ohio, 392 U.S. 1 (1968), which set out the
circumstances under which police can stop and frisk a criminal
suspect.
8

As support for this liberty interest, Plaintiffs cite Apton v.
Wilson, 506 F.2d 83 (D.C. Cir. 1974), which dealt with the mass
arrest of protesters at a May Day demonstration. Protesters
were arrested without probable cause under procedures that
“swept up innocent persons along with the lawbreakers” and
“carr[ied] overtones of physical abuse.” Id. at 87, 93.
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officer9 made clear by the assertion of authority, that she was
not free to leave, that she was detained for a short time
period, that during such time she was subject to the officer’s
control and actions, and otherwise was thus deprived of liberty
and freedom of movement.”

Compl. ¶¶ 49, 60.

While the Court

must accept the factual allegation that Plaintiffs were
“detained for a short time period,” so that they could be handed
the notices, the Court is not bound to accept the legal
conclusion, couched as a factual allegation, that they were
somehow “arrested” or “seized.”

See Twombly, 550 U.S. at 556.

The Court finds that these first three “liberty interests”
asserted by Plaintiffs are neither supported by the cases
Plaintiffs cite nor by the facts Plaintiffs allege.
As to Plaintiffs’ fourth identified “liberty interest,” -to be free from government punishment unless and until proved
guilty beyond a reasonable doubt at a criminal trial conducted
in accordance with all relevant constitutional guarantees -- the
Court finds simply that Plaintiffs were not deprived of that
interest.

They were provided the opportunity to challenge the

charges in a criminal trial and they elected not to do so.
Plaintiffs make no claim that there was anything infirmed about

9

Defendants assert that animal control officers are not entitled
to and do not carry firearms. Reply at 12. Because the Court
is deciding a motion to dismiss, however, it will assume the
truth of Plaintiffs’ allegations.
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the process provided after the criminal charges were filed.

See

Opp’n at 17.
Plaintiffs do, of course, have a property interest in the
amount of the fine assessed and paid.

See Herrada v. City of

Detroit, 275 F.3d 553, 556 (6th Cir. 2001) (noting that an
individual “clearly has a property interest in her money”).
Plaintiffs’ due process claim for the deprivation of that
property interest, however, fails for a number of reasons.
First, courts have consistently held that, where an
individual elects to pay a civil fine and thus avoid the
criminal procedures provided to contest the alleged violation,
that individual lacks standing to challenge the procedures they
declined to use.

Herrada v. City of Detroit, 275 F.3d 553, 558

(6th Cir. 2001); Mills v. City of Springfield, Civ. No. 10-4036,
2010 WL 3526208, (W.D. Mo. Sept. 3, 2010); Shavitz v. City of
High Point, 270 F. Supp. 2d 702 (M.D.N.C. 2003); Van Harken v.
City of Chicago, 906 F. Supp. 1182 (N.D. Ill. 1995); Walter v.
City of Chicago, Civ. No. 91-6333, 1992 WL 88457, at *3 (N.D.
Ill. Apr. 27, 1992).

The reason for this holding is

straightforward: “Plaintiff has not taken advantage of the
procedural processes offered to him, therefore he has not been
harmed one way or another by such processes and, accordingly,
cannot challenge them on due process grounds.”

Shavitz, 270 F.

Supp. 2d at 711 n.8; see also, Walter, 1992 WL 88457 at *3
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(observing that the plaintiff “cannot trace any deprivation or
threatened deprivation of property to any of the adjudicative
procedures . . . that he questions because he never made use of
them”).
Second, assuming Plaintiffs have standing to challenge the
procedures provided under the Code provisions on due process
grounds, the Court would find that the procedures easily pass
constitutional muster.

In a pair of decisions issued on the

same day by the United States District Court for the Western
District of Michigan, that court found constitutional an
enforcement scheme very similar to the scheme challenged by
Plaintiffs in the instant action.

Gradisher v. County of

Muskegon, 255 F. Supp. 2d 720 (W.D. Mich. 2004); Silvernail v.
County of Kent, Civ. No. 02-559, 2003 WL 1869206 (W.D. Mich.
Feb. 24, 2004).

This Court finds the Michigan court’s analysis

instructive.
The municipal ordinances at issue in Gradisher and
Silvernail were ordinances that allowed a private corporation,
Check Enforcement Unit, Inc. (CEU), to contract with the
respective county governments to “process, recover, investigate,
and assist in the enforcement of dishonored checks in violation
of applicable state laws or township ordinances.”
255 F. Supp. 2d at 723.

Gradisher,

Pursuant to the contract, when a check

payable to a participating merchant is dishonored, the check is
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forwarded to CEU and CEU then sends out a series of notices to
the check writer.

The first notice, entitled “Due Process

Notice,” demands payment of the amount of the dishonored check
plus bank fees payable to the merchant, plus a $25 Government
Assessment Fee payable to the respective county.

The Notice

requests payment within five business days and threatens,
“FAILURE TO MAKE PAYMENT CAN RESULT IN A WARRANT FOR YOUR
ARREST.”

Id. at 724.

If payment is not received, CEU sends out

a second noticed entitled “Final Notice,” informing the
recipient that “you are now in violation of criminal law” and
repeating the warning regarding the possibility of arrest.

If

no response is forthcoming, a third notice, entitled “Interview
Notice,” is sent informing the check writer that an
investigation has begun for the consideration of criminal
prosecution and instructing him or her to report to the
Sheriff’s Department for an interview.

All three notices are

sent on Sheriff’s Department letterhead and provide a telephone
number to call if there are any questions.

The plaintiffs in

both cases ultimately paid the amounts sought, including the
Government Assessment Fee.
The plaintiffs then filed suit under § 1983 alleging that
the enforcement scheme violated due process by: (1) imposing a
$25 Government Assessment Fee on persons without a criminal
complaint having been filed with the Sheriff’s Department,
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without a determination of the check writer’s intent to defraud,
and without a determination to prosecute having been made; (2)
imposing a $25 Government Assessment Fee without providing
notice and an opportunity to be heard by an impartial government
official; and (3) by allowing the CEU defendants to impersonate
the Sheriff’s Department.

Id. at 725.

In dismissing the due

process claims, the district court first relied on a standing
argument similar to the holdings of the cases cited above, but
without directly referencing “standing.”

The court reasoned

that, “with regard to whether a deprivation occurred . . . an
individual’s voluntary surrender of property to the government
precludes a due process claim because, in such cases, there has
been no government interference with the individual’s property
interest.”

Id. at 728.

The court went on, however, to evaluate the process
provided in light of the three factors set out by the Supreme
Court in Mathews v. Eldridge, 424 U.S. 319 (1976), for
determining whether a given procedure comports with due process:
“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.”

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Gradisher, 255 F. Supp. 2d at 730 (quoting Mathews, 424 U.S. at
335).

As to the first factor, the Michigan court held that the

private interest in the $25 fee is “relatively minimal,”
comparing that interest to the “loss of an essential service,
such as electricity or with the loss of employment, both of
which would require greater protection.”

Id. at 730-31 (citing

Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 14 n.15
(1978) and Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,
542-43 (1985)).
As to second factor, the court noted that there is no
indication that additional procedural safeguards would have
reduced the risk of an erroneous deprivation of the plaintiffs’
money.

They were given a number to call to explain why they

should not be required to pay the Government Assessment Fee and
they did not attempt to call the number.

Furthermore, the court

noted that, if the plaintiffs failed to pay the fine, “the
County Defendants could not have deprived Plaintiffs of their
property without first filing a civil or criminal action,
because the Ordinance does not authorize the County to take any
action against individuals that fail to respond other than
through a civil or criminal proceeding.”

Id. at 731.

Finally, as to the third factor, the court recognized the
counties’ interest “in resolving bad check complaints outside of
the criminal system, thereby reducing administrative costs
20

associated with such violations and avoiding unnecessary
criminal or civil proceedings.”

Id.

“Outsourcing” the handling

of these violations, the court observed, permitted the counties
to accomplish these goals.

Furthermore, providing additional

safeguards, such as a full hearing, would increase the counties’
costs and administrative burdens without any significant benefit
to the plaintiffs.

Id.

The Sixth Circuit affirmed Silvernail and Gradisher,
concurring in the reasoning of the district court.

Silvernail

v. County of Kent, 385 F.3d 601, 605 (6th Cir. 2004); Gradisher
v. County of Muskegon, 108 Fed. App’x 388 (6th Cir. 2004).

The

Sixth Circuit added, “had plaintiffs failed to pay the
assessment fee, they would have been entitled to the full
panoply of due process protections when and if the County
instituted a criminal action to collect the fee.”

Silvernail,

385 F.3d at 605.
Similarly here, while the potential fines are somewhat
greater than the fines in Silvernail and Gradisher, the private
interest is relatively minimal.

As to the value of additional

safeguards, Defendants correctly observe that if a due process
hearing were held with respect to all notices, the most that
would be accomplished is that the accused violator would deny
responsibility and criminal proceeding would still follow.
Finally, outsourcing the initial civil fine portion of the
21

enforcement scheme is a legitimate means of reducing
administrative costs and reducing the need for unnecessary
criminal proceedings.
The Court finds that the Complaint does not state a viable
due process claim.
D. Fourth Amendment
The precise nature of Plaintiffs’ Fourth Amendment claim is
not clear.

In the Complaint, they assert that Defendants

violated their “right to be secure in persons, houses, papers
and effects against unreasonable seizures without a finding of
probable cause supported by oath or affirmation.”

Compl. ¶ 76.

This would appear to be related to their claim that they were
“arrested” or “seized” during the brief periods of time in which
they were being handed the notices of violation.

As stated

above, the Court need not accept their legal conclusion,
unsupported by facts, that they were ever arrested.
Elsewhere in their Complaint, Compl. ¶ 77, and in opposing
the motion to dismiss, Plaintiffs cast their Fourth Amendment
claim as a claim that the issuance of the notices of violation
is a criminal fine that cannot be issued without a finding of
probable cause.

They also contend that, if they did not pay the

fines, they were “punished” with the “sanction” of facing a
criminal prosecution and possible incarceration.

Opp’n at 21.

The fallacy here is that individuals are not “punished” or
22

“sanctioned” for not paying the civil fines, they are simply
given a choice.

If they do not wish to challenge the alleged

violation, they can pay the fine.

If they do wish to challenge

the violation, Defendants are required to make a showing of
probable cause before the statement of criminal charges can be
issued.

Individuals can then proceed to a criminal phase in

which Plaintiffs agree all of their constitutional rights would
be protected.

Id. (“Plaintiffs . . . do not contest their

treatment during the court criminal proceedings.”).
E. Sixth Amendment
Plaintiffs’ Sixth Amendment claim is similar to their
Fourth Amendment claim and suffers the same impairments.

The

Sixth Amendment provides that “[i]n criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the
witnesses against him.”
Ct. 2527, 2531 (2009).

Melendez-Diaz v. Massachusetts, 129 S.
Plaintiffs acknowledge that, in a

typical criminal prosecution, Sixth Amendment rights attach at
the time of the filing of the criminal charging document.
at 22.

Opp’n

Plaintiffs argue, however, that the Code “sets up a

scheme that is not a typical criminal prosecution.”

Id.

They

contend that the timing of the issuance of the fine leaves them
without the “most rudimentary supporting facts prior to the
imposition of a criminal sanction [in] violat[ion] of the 6th
Amendment.”
23

Again, Plaintiffs are treating the filing of a criminal
charge as the imposition of a criminal sanction.

It is not a

criminal sanction, it is simply the beginning of the criminal
process.10

Plaintiffs acknowledge that the Statement of Charges

they received complied with all constitutional requirements.
Opp’n at 23.

Accordingly, the Court finds Plaintiffs were

afforded their Sixth Amendment rights.
IV. CONCLUSION
For the reasons stated above, the Court will grant
Defendants’ motion to dismiss and will dismiss the Complaint in
its entirety.

A separate order will issue.

10

Plaintiffs based the request for leave to file a surreply on
“Defendants’ new claim” that the fines assessed in the Notices
of Violation “somehow mysteriously and automatically morph from
‘civil’ into ‘criminal’ fines.” ECF No. 7 at 1. Defendants
clearly set out the civil/criminal aspects of the enforcement
scheme in their opening memorandum. See Mot. at 14 (noting that
“criminal prosecution is avoidable if a civil fine is paid”); 15
(explaining that civil fines like those assessed in the notices
of violation typically do not fall within the scope of the Eight
Amendment); 18 (opining that Plaintiffs’ property interest
“presumably lies in the civil penalty that was assessed against
them in connection with the citations they received); 21 (noting
that “if Plaintiffs chose not to pay the civil fines, then a
criminal charging document and subsequent trial” would follow).
Furthermore, the Code clearly describes a two-part
civil/criminal procedure. See § 81-16(A) (“The civil and
criminal provisions of this chapter shall be enforced by those
persons or agencies designated . . .”); § 81-16(B) (“in the evnt
that such fine is not paid within the time prescribed, a
criminal charging document shall be initiated”).
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_______________/s/________________
William M. Nickerson
Senior United States District Judge

DATED: July 13, 2011.

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