McCarthy v. City of Cleveland

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0350p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
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DANIEL MCCARTHY; COLLEEN CARROLL,
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Individually and on behalf of all others
similarly situated, -
Plaintiffs-Appellants, -
No. 09-4149

,
>
-
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v.
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CITY OF CLEVELAND,
Defendant-Appellee. -
N
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 09-01298—James S. Gwin, District Judge.
Argued: August 4, 2010
Decided and Filed: November 9, 2010
Before: COLE and McKEAGUE, Circuit Judges; MAYS, District Judge.*

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COUNSEL
ARGUED: Thomas A. Muzilla, THE MUZILLA LAW FIRM, LLC, Cleveland, Ohio,
for Appellants. Gary Scott Singletary, CITY OF CLEVELAND, DEPARTMENT OF
LAW, Cleveland, Ohio, for Appellee. ON BRIEF: Thomas A. Muzilla, THE
MUZILLA LAW FIRM, LLC, Cleveland, Ohio, for Appellants. Michael F. Cosgrove,
Jennifer Meyer, CITY OF CLEVELAND, DEPARTMENT OF LAW, Cleveland, Ohio,
for Appellee.
MAYS, D. J., delivered the opinion of the court, in which COLE, J., joined.
McKEAGUE, J. (pp. 11–13), delivered a separate concurring opinion.

*
The Honorable Samuel H. Mays, Jr., United States District Judge for the Western District of
Tennessee, sitting by designation.

1
No. 09-4149 McCarthy, et al. v. City of Cleveland Page 2

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OPINION
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SAMUEL H. MAYS, JR., District Judge. Plaintiffs Daniel McCarthy and
Colleen Carroll appeal the judgment of the district court dismissing their action brought
under 42 U.S.C. § 1983. Plaintiffs allege that the City of Cleveland’s decision to enforce
its traffic camera ordinance against drivers who lease their cars constituted an
unconstitutional taking of private property without just compensation because the
ordinance originally did not provide for lessee liability. The district court disagreed and
dismissed their suit after concluding that their Amended Complaint failed to state a cause
of action under the Takings Clause of either the United States or Ohio Constitution.
Because Cleveland’s enforcement of its traffic regulations did not result in the seizure
of a specific fund of money, we hold that no taking of property occurred under the Fifth
Amendment and thus AFFIRM the judgment of the district court on the federal
question. We find, however, that the district court did not properly address Plaintiffs’
state law claims. We REVERSE and REMAND the judgment of the district court on
the remaining issues of Ohio law.

I.

Plaintiffs are residents of Cuyahoga County, Ohio, which encompasses the city
of Cleveland. On February 23, 2009, McCarthy received a notice from Cleveland’s
Parking Violations Bureau stating that one of its automatic traffic enforcement cameras
had captured him committing a traffic offense. McCarthy received a second notice
stating that he had committed another traffic offense on March 3, 2009. Carroll received
two notices stating that automatic cameras had captured her violating Cleveland’s traffic
ordinances on March 8 and August 15, 2007. Both McCarthy and Carroll leased their
vehicles. Thus, they were not the registered owners of their respective automobiles.
Plaintiffs chose not to contest the citations and paid the $100 fine on each ticket.
No. 09-4149 McCarthy, et al. v. City of Cleveland Page 3

Cleveland Codified Ordinance (“CCO”) 413.031 authorizes the Parking
Violations Bureau to install automatic enforcement cameras to photograph motorists
who run red lights or speed through designated locations. The ordinance, as originally
enacted, provided that “[t]he owner of a vehicle shall be liable for the penalty imposed
under this section.” CCO 413.031(c) (2007). It defined “owner” as “the person or entity
identified by the Ohio Bureau of Motor Vehicles . . . as the registered owner of the
vehicle.” CCO 413.031(p)(3) (2007). Because McCarthy and Carroll leased their
vehicles, they were not listed as registered owners on the records of the Ohio Bureau of
Motor Vehicles. Under the plain text of Cleveland’s ordinance, Plaintiffs were not liable
for the tickets. See CCO 413.031(p)(3) (2007). The Ohio Court of Appeals accepted
this reasoning when Dickson & Campbell, LLC, a law firm that also leased its company
vehicles but that is not a party to the present suit, chose to contest the citations it
received. See Dickson & Campbell, LLC v. City of Cleveland, 908 N.E.2d 964, 970
(Ohio Ct. App. 2009). The Ohio Court of Appeals’ ruling effectively immunized lessees
from enforcement of Cleveland’s automatic traffic camera ordinance. Id. Cleveland has
since amended its ordinance to correct the omission so that lessees are now liable for
their traffic camera violations. See CCO 413.031(p)(4) (2010) (providing that the
“registered owner of a vehicle, or in the case of a leased or rented vehicle, the ‘lessee,’”
is liable for the ticket).

Plaintiffs filed suit in the Court of Common Pleas of Cuyahoga County, Ohio,
on May 29, 2009, alleging that Cleveland’s enforcement of the original traffic camera
enforcement ordinance against lessees violated the Takings Clause of the United States
and Ohio Constitutions. See U.S. Const. amend V; Ohio Const. Art. I, § 19. Plaintiffs
also sought mandamus and other equitable relief under Ohio law to force Cleveland to
disgorge the wrongly collected fines as just compensation for the alleged takings.
Cleveland removed the action to federal court based on federal question jurisdiction. See
28 U.S.C. §§ 1331, 1441(b). Following briefing, the district court granted Cleveland’s
Motion to Dismiss. McCarthy v. City of Cleveland, No. 1:09-CV-1298, 2009 U.S. Dist.
LEXIS 68651, at *3 (N.D. Ohio Aug. 6, 2009). The district court found that Plaintiffs
failed to allege that a taking had occurred because Plaintiffs voluntarily paid the fines
No. 09-4149 McCarthy, et al. v. City of Cleveland Page 4

without contesting them using the appeal procedure noted on the citations. Id. at *11.
Plaintiffs timely filed their notice of appeal.

II.

Plaintiffs argue that Cleveland’s enforcement of the automatic traffic camera
ordinance against lessees deprived them of their property without just compensation in
violation of the Takings Clause of the Fifth Amendment.1 Plaintiffs assert that
Cleveland’s actions effected a per se taking and that their decision to pay the fines
without contesting them did not amount to a voluntary payment that would deprive them
of their right to challenge Cleveland’s action. (Appellants’ Br. at 15-19.) They argue
that they had “no meaningful choice” but to pay the citations. (Id. at 19.)

We review a district court’s dismissal of a complaint de novo. Delay v.
Rosenthal Collins Group, LLC, 585 F.3d 1003, 1005 (6th Cir. 2009). In so doing, “we
accept as true all non-conclusory allegations in the complaint and determine whether
they state a plausible claim for relief.” Id. (citing Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949-50 (2009)).

A.

The Fifth Amendment provides, in pertinent part, that private property shall not
“be taken for public use, without just compensation.” U.S. Const. amend. V; see also
Chicago Burlington & Quincy R.R. Co. v. Chicago, 166 U.S. 226, 239 (1897) (holding
that the Takings Clause applies to the states). Because Cleveland has not returned
Plaintiffs’ fines or provided any other compensation, the question before the court is
whether Cleveland’s actions constitute a taking. See Webb’s Fabulous Pharms., Inc. v.
Beckwith, 449 U.S. 155, 160 (1980). A taking may assume one of two forms: per se,
also known as a physical taking, or regulatory. Waste Mgmt., Inc. of Tenn. v. Metro.
Gov’t of Nashville and Davidson County, 130 F.3d 731, 737 (6th Cir. 1997). A physical

1
Plaintiffs’ Amended Complaint also alleged that Cleveland’s action violated Article I, § 19 of
the Ohio Constitution. The violation of a provision of state law is not cognizable under § 1983. Stanley
v. Vining, 602 F.3d 767, 769 (6th Cir. 2010).
No. 09-4149 McCarthy, et al. v. City of Cleveland Page 5

taking occurs when “the government physically intrudes upon a plaintiff’s property.”
Id. A regulatory taking occurs when a governmental enactment leaves a property owner
with “no productive or economically beneficial use”of his property, Lucas v. South
Carolina Coastal Council, 505 U.S. 1003, 1017 (1992) (emphasis in original), or
prevents the property owner from enjoying “some – but not all – economic uses.”
Harris v. City of St. Clairsville, 330 F. App’x 68, 76 (6th Cir. 2008). Plaintiffs assert
that Cleveland’s enforcement of its original traffic camera ordinance is a per se taking.
(Appellants’ Br. at 12.)

The Supreme Court has held that certain statutes can effect a per se taking of
funds. In Webb’s Fabulous Pharmacies, 449 U.S. at 163-64, the Court found that a
Florida statute allowing county court clerks to keep all interest earned on funds paid into
court in interpleader actions effected a taking without just compensation. See Fla. Stat.
§ 28.33 (1977). The seizure of the interest earned was unrelated to any service provided
by the Florida court system because a separate statute specified a percentage fee that the
court clerk would receive to cover his expenses. Webb’s Fabulous Pharms., 449 U.S.
at 157 n.3. (citing Fla. Stat. § 28.24 (1977)). The Supreme Court held that the Florida
statute allowed the “State, by ipse dixit, [to] transform private property into public
property without compensation” and invalidated the provision. Id. at 164.

More recently, the Supreme Court has held that state programs requiring that the
interest earned by lawyers’ trust accounts be turned over to the states’ legal aid charities
effect a per se taking of private property. Brown v. Legal Found. of Wash., 538 U.S.
216, 240 (2003). Known as Interest on Lawyers’ Trust Accounts (“IOLTA”), these
programs, now found in every state, confiscate the interest earned from attorneys’
general trust accounts. Id. at 220. Those general trust accounts hold client funds that
are not large enough to justify establishing separate, client-specific trust accounts. Id.
at 223-24. Because the interest income generated by funds held in IOLTA accounts is
the private property of the funds’ owners, the Court found that state IOLTA programs
No. 09-4149 McCarthy, et al. v. City of Cleveland Page 6

took private property for the legitimate public use of providing legal aid to the poor. Id.
at 220, 240.2

These two examples, in which the Supreme Court found a per se taking of funds,
explain why the Cleveland traffic ordinance challenged here does not effect a taking.
In each case, the state law at issue operated to seize a sum of money from a specific
fund. See id. at 223-24 (lawyers’ trust accounts); Webb’s Fabulous Pharms., 449 U.S.
at 163-64 (funds held by the Florida courts in an interpleader account). The statutes
found to effect takings did not, as the Cleveland ordinance does, merely impose an
obligation on a party to pay money on the happening of a contingency. Cleveland did
not seize funds from Plaintiffs’ bank accounts. Cf. Brown, 538 U.S. at 224-25 (noting
that the financial institutions were required by law to pay the interest earned directly to
the state). Instead, Plaintiffs, on receiving the traffic citations, paid the money demanded
without protest or appeal.

The Supreme Court has no direct, binding holding addressing whether a law must
act on a specific fund of money to implicate the Takings Clause. However, in Eastern
Enterprises v. Apfel, 524 U.S. 498 (1998), five Justices indicated that the Takings Clause
is implicated only by laws that “appropriate, transfer, or encumber” an estate in land,
intellectual property, or other specific “identified property interest[s],” such as a bank
account or accrued interest. Id. at 540 (Kennedy, J., concurring in the judgment and
dissenting in part); see also id. at 554 (“The ‘private property’ upon which the Clause
traditionally has focused is a specific interest in physical or intellectual property.”
(citations omitted)) (Breyer, J., joined by Stevens, Souter, and Ginsburg, J.J., dissenting).
The Eastern Enterprises plurality, however, did find that a regulatory taking occurred
when a federal statute retroactively imposed a $100 million liability on a corporation
that had ceased operating in the targeted industry more than thirty-years before. Id. at
528-29 (plurality opinion). The primary factors cited by the plurality in support of its
holding were: 1) the severe financial penalty the act imposed; 2) the disproportionate

2
There was no constitutional violation, however, because the Court determined that the just
compensation due, measured by the owners’ pecuniary loss, was “zero.” Id. at 240.
No. 09-4149 McCarthy, et al. v. City of Cleveland Page 7

nature of the benefit to be conferred compared with the burden to be applied; and 3) the
retroactive nature of the imposition. See id. at 529-37.

Faced with the Court’s split opinions in Eastern Enterprises, courts of appeal
have differed in their analytical approaches. Some courts have suggested that Justice
Kennedy’s concurrence, which was necessary for the majority’s result, is the narrower
opinion and thus binding precedent. See Swisher Int’l v. Schafer, 550 F.3d 1046, 1054
n.5 (11th Cir. 2008); see also Marks v. United States, 430 U.S. 188, 193 (1977) (“When
a fragmented Court decides a case and no single rationale explaining the result enjoys
the assent of five Justices, the holding of the Court may be viewed as that position taken
by those Members who concurred in the judgments on the narrowest grounds.” (internal
quotation marks and citation omitted)). Other courts of appeal have concluded that they
are bound by the agreement of five Justices that the Takings Clause is inapplicable when
a law does not operate on a specific property interest. See, e.g., Commonwealth Edison
Co. v. United States, 271 F.3d 1327, 1339 (Fed. Cir. 2001) (en banc); Parella v. Ret. Bd.
of R.I. Employees’ Ret. Sys., 173 F.3d 46, 58 (1st Cir. 1999). A third group of courts has
concluded that neither the plurality nor Justice Kennedy’s concurrence is binding and
thus engaged in an independent analysis of the legal issues. See, e.g., United States v.
Alcan Aluminum Corp., 315 F.3d 179, 189 (2d Cir. 2003).

Regardless of the analysis employed, all circuits that have addressed the issue
have uniformly found that a taking does not occur when the statute in question imposes
a monetary assessment that does not affect a specific interest in property. See Parella,
173 F.3d at 58; Alcan Aluminum Corp., 315 F.3d at 189-90; Unity Real Estate Co. v.
Hudson, 178 F.3d 649, 659 (3d Cir. 1999); Holland v. Big River Minerals Corp., 181
F.3d 597, 606 (4th Cir. 1999); Swisher Int’l, 550 F.3d at 1056-57; Ass’n of Bituminous
Contractors, Inc. v. Apfel, 156 F.3d 1246, 1254-57 (D.C. Cir. 1998); Commonwealth
Edison, 271 F.3d at 1339. Those circuit courts that have applied the plurality’s takings
analysis have done so only where a specific private property interest is retroactively
affected. See, e.g., U.S. Fid. & Guar. Co. v. McKeithen, 226 F.3d 412, 420 (5th Cir.
2000) (applying the analysis of the Eastern Enterprises plurality after finding that the
No. 09-4149 McCarthy, et al. v. City of Cleveland Page 8

state law in question operated retroactively on an identifiable, specific property interest);
Central States, Se. & Sw. Areas Pension Fund v. Midwest Motor Express, Inc., 181 F.3d
799, 807-10 (7th Cir. 1999) (applying the plurality’s analysis where the property
retroactively affected was a pension fund); Quarty v. United States, 170 F.3d 961, 968-
70 (9th Cir. 1999) (applying the plurality’s analysis and finding no taking where
challenged act was a retroactive increase in the federal gift and estate tax rates applied
to a decedent’s estate). We agree with these analyses and hold that the Takings Clause
“is not an appropriate vehicle to challenge the power of [a legislature] to impose a mere
monetary obligation without regard to an identifiable property interest.” Swisher Int’l,
550 F.3d at 1057. Because the challenged ordinance does not seize or otherwise impair
an identifiable fund of money, Plaintiffs have failed to plead a cause of action under the
Takings Clause.3 We therefore AFFIRM the district court’s dismissal of Plaintiffs’
§ 1983 claim.

B.

At oral argument and in their Reply Brief, Plaintiffs attempt to resuscitate their
suit by alleging that the original Cleveland traffic camera enforcement ordinance also
violated due process. The gravamen of Plaintiffs’ Amended Complaint is that Cleveland
improperly and arbitrarily interpreted its ordinance to apply to drivers who leased their
cars. (Appellants’ Br. at 11.) Charges of arbitrary or irrational governmental action
generally implicate the Constitution’s Due Process Clause. See White Oak Prop. Dev.,
LLC v. Washington Twp., 606 F.3d 842, 853 (6th Cir. 2010). Plaintiffs did not allege a
due process violation in their Amended Complaint. (See Reply Br. at 16 (acknowledging
that Plaintiffs “have not previously raised the issue of . . . due process”).) Because it is

3
Even if applied, the analysis undertaken by the Eastern Enterprises plurality would be of no help
to Plaintiffs. Plaintiffs do not argue that the Cleveland ordinance was a regulatory taking. Compare
Appellants’ Br. at 12-15 (arguing that the taking was per se), with Eastern Enters., 524 U.S. at 529
(applying the three-factor test “that traditionally ha[s] informed [the] regulatory takings analysis”).
Further, Cleveland’s ordinance imposes a $100 fine, not a draconian penalty. See CCO 413.031(o) (2007);
cf. Eastern Enters., 524 U.S. at 529 (penalty of $50-$100 million). The fine is not disproportionate or
retroactive. Its economic impact on Plaintiffs is slight. Cf. Eastern Enters., 524 U.S. at 532-37 (noting
the disproportionate nature of the exaction and its severe interference with reasonable investment
expectations because of its retroactivity). Thus, even applying the Eastern Enterprises analysis, Plaintiffs
fail to establish that a taking has occurred.
No. 09-4149 McCarthy, et al. v. City of Cleveland Page 9

well settled that “the appellant cannot raise new issues in a reply brief,” we will not
address their belated due process arguments. United States v. Tristan-Madrigal, 601
F.3d 629, 636 n.2 (6th Cir. 2010) (citations omitted).

C.

Plaintiffs’ final argument is that the district court erred by failing to address their
state-law claims for restitution and/or mandamus relief. (Appellants’ Br. at 25.)
Plaintiffs ask us to remand those claims to the district court so that the district court can
rule on them or exercise its discretion and remand them to the Court of Common Pleas
of Cuyahoga County, Ohio. (Id.)

Plaintiffs’ state-law claims, like their federal claims, are based on the assertion
that Cleveland improperly retained lessees’ fines and thus took “private property without
compensation in violation of Art. I, § 19 of the Ohio Constitution.” (Amended Compl.
¶ 53.) The district court appears to have assumed that the Takings Clause of the Ohio
Constitution is coterminous with that of the Federal Constitution but cites no case
interpreting Ohio’s constitutional provision. See McCarthy, 2009 U.S. Dist. LEXIS
68651, at *9-11. The Ohio Supreme Court has held, however, that Article I, § 19 of the
Ohio Constitution affords greater protection than the federal Takings Clause. See City
of Norwood v. Horney, 853 N.E.2d 1115, 1136-42 (Ohio 2006) (rejecting the holding of
the Supreme Court in Kelo v. City of New London, 545 U.S. 469, 488-90 (2005) that
economic development is a “public purpose” under the federal Takings Clause as
inconsistent with the greater protection of property rights afforded by the Ohio
Constitution).

The district court did not analyze Count I of Plaintiffs’ Amended Complaint,
which asserted that Cleveland’s enforcement of the traffic camera ordinance unjustly
enriched the city. See McCarthy, 2009 U.S. Dist. LEXIS 68651, at *9-11. We,
therefore, must REVERSE the judgment of the district court on these state law claims
and REMAND this case for further proceedings. On remand the district court may
exercise supplemental jurisdiction over these state law claims, see 28 U.S.C.
No. 09-4149 McCarthy, et al. v. City of Cleveland Page 10

§ 1367(c)(3), or remand them to the Court of Common Pleas of Cuyahoga County, Ohio.
See 28 U.S.C. § 1447(c) (“If at any time before final judgment it appears that the district
court [to which the case was removed] lacks subject matter jurisdiction, the case shall
be remanded.”).

III.

Plaintiffs chose to plead their case as an action under the Takings Clause. The
district court correctly dismissed their federal claims. We AFFIRM the judgment of the
district court on Plaintiffs’ federal claims. We REVERSE the judgment of the district
court on Plaintiffs’ state law claims and REMAND for further proceedings.
No. 09-4149 McCarthy, et al. v. City of Cleveland Page 11

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CONCURRENCE
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McKEAGUE, Circuit Judge, concurring. I concur in the majority opinion in all
respects. I write separately merely to highlight a second reason why Plaintiffs’ payment
of their traffic fines does not constitute a “taking.” In order to demonstrate that the City
committed a taking, Plaintiffs must allege and show that payment of their citations was
involuntary. Yee v. City of Escondido, Cal., 503 U.S. 519, 527 (1992) (“the Takings
Clause requires compensation if the government authorizes a compelled invasion of
property”). As the City clearly issued the citations and Plaintiffs paid the required fines,
Plaintiffs must allege facts which, if proven, would support a finding that their payments
were made under duress or compulsion.

In Oberhausen v. Louisville-Jefferson County Metro Government, 527 F.Supp.2d
713 (W.D. Ky. 2007), the court held in an analogous context that voluntary payments
made to satisfy outstanding parking tickets were precisely that: voluntary payments. Id.
at 725. The payments were considered to be “voluntary” because paying the fine was not
the only option available to the vehicle owner in responding to notice of the violation.
To avoid the potential consequences associated with nonpayment of the fine, the vehicle
owner could either pay the fine or contest the ticket by any of three methods. See id. at
716-17. The availability of these options, the court held, citing Herrada v. City of
Detroit, 275 F.3d 553, 559 (6th Cir. 2001), was sufficient to render the plaintiffs’ choice
to pay the fines voluntary, not the product of an improper deprivation. Oberhausen, 527
F.Supp.2d at 725. The voluntariness of the payments was thus held to undermine the
plaintiffs’ allegation that they suffered an unconstitutional “taking.” Id.

Here, too, the notice of violation received by Plaintiffs adequately advised them
of their options. As the district court noted, the second page of the citation set out the
instructions for answering the notice, providing: “You must either admit or deny this
infraction. If your admission or denial is not received within 21 calendar days of the
notice date of the ticket, late penalties will be added and you will lose your rights to
No. 09-4149 McCarthy, et al. v. City of Cleveland Page 12

appeal.” McCarthy, 2009 U.S. Dist. LEXIS 68651 at *6. The citation informed
Plaintiffs of four methods “to admit” the violation, all of which involved paying the fine.
The instructions “to deny” permitted them to check a box to indicate whether they
desired a hearing, wanted to demonstrate that the vehicle had been stolen, or wanted to
demonstrate that the vehicle was not in their custody, care, or control at the time of the
infraction. Id. at *7.

The citation thus clearly provided an option, permitting either payment or appeal.
Plaintiffs had the option of challenging the charged violations without first paying the
fines. For whatever reason, they chose to voluntarily pay the fines without challenging
the tickets. The City did not garnish, attach, seize or otherwise “take” the fine monies
from accounts or funds belonging to plaintiffs. As the citation provided an alternative
to payment—an alternative not unreasonable, onerous or coercive—Plaintiffs’ payments
of the fines were voluntary, not compelled. Indeed, this conclusion is corroborated by
the experience of the plaintiffs in Dickson & Campbell, LLC v. City of Cleveland, 908
N.E.2d 964 (Ohio Ct. App. 2009), who successfully challenged this very ordinance on
the very grounds now asserted without paying their fines. That the payments were
voluntary is a fact that clearly and fatally undermines Plaintiffs’ takings claim.

If Plaintiffs had voluntarily paid under protest and exercised their right to
challenge the violations, they arguably would have preserved their right to bring a
takings action, but even then, until they received a final denial without just
compensation, the action would be unripe. “The Fifth Amendment does not proscribe
the taking of property; it proscribes taking without just compensation.” Williamson
County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172,
194 (1985). Yet, even where there is a “taking” of private property by the government,
it is not actionable as an unconstitutional taking until after the property owner has first
invoked any available process for obtaining compensation and received a final decision
from the governmental entity denying the claim. Id. at 194-95; Streater v. Cox, 336 F.
App’x 470, 477 (6th Cir. 2009). Here, it is undisputed that Plaintiffs could have
appealed, but did not. They did not exhaust the process available to them and did not
No. 09-4149 McCarthy, et al. v. City of Cleveland Page 13

obtain a final decision on any appeal. It follows that they have not been “denied” just
compensation for any improper taking and their federal court action for any
unconstitutional taking is therefore premature.

Plaintiffs insist the appeal process provided by the City is not adequate because
it could have turned out to be more expensive than simply paying the fine. Citing
Williams v. Redflex Traffic Systems, Inc., 582 F.3d 617, 621 (6th Cir. 2009), Plaintiffs
argue that such a process “offers no choice at all.” In Williams, the subject citation gave
the recipient the option of either paying a $50 fine or requesting a hearing conditioned
on payment of a court processing fee of $67.50—“an irrevocably bad bargain.” Id.
Nonetheless, until the plaintiffs challenged the allegedly unfair process, the court held,
they could not establish the requisite concrete factual context and were not subject to the
sort of hardship that would render their claim ripe for federal court adjudication. Until
the plaintiffs invoked the allegedly unfair procedure, their claim was deemed speculative
and non-justiciable. Id.

It follows that Plaintiffs in this case, too, are in no position to complain that the
City’s appeal process is so expensive or onerous as to effectively leave them no choice
but to pay the traffic fines. Because they did not invoke the process, their claimed
hardship is purely speculative. It follows, per Williams, that Plaintiffs’ complaint, to the
extent it could be liberally construed as alleging that their payment of the fines was
involuntary because coerced by an unfair process, is still facially defective for their
undisputed failure to have invoked and challenged the allegedly unfair process.

There are thus multiple grounds for affirming the dismissal of Plaintiffs’ claim
under the Takings Clause of the United States Constitution.