dissenting:
I respectfully dissent and would affirm the decision of the trial court. Plaintiffs were not denied due process under the fourteenth amendment: they were given notice and a hearing before their business van was declared “inoperable.” Nor were plaintiffs denied any rights under the fourth amendment. The majority ignores the cases holding that a warrant is unnecessary when a municipality seizes property that has been declared to be a nuisance, relying instead on the much-criticized Conner case. Finally, “qualified immunity” protects government officials where plaintiffs are not able to show the violation of a “clearly established” right, and plaintiffs have not shown any such violation here.
It is important that meritless section 1983 actions be terminated quickly. It is unfortunate that plaintiffs, both of whom are lawyers, have been able to tie up the Village for so long, over this May 1997 incident. Our normal reluctance to decide cases on the pleadings does not apply here. Most federal circuits apply strict pleading requirements to section 1983 complaints implicating qualified-immunity issues. See, e.g., Eddington v. Missouri Department of Corrections, 52 F.3d 777, 779 n.3 (8th Cir. 1995).
A section 2 — 619 motion is similar to a motion for summary judgment, one difference being that it comes early in the case, before there is an opportunity for discovery. Leow v. A&B Freight Line, Inc., 175 Ill. 2d 176, 187-88, 676 N.E.2d 1284, 1289 (1997). It is appropriate to decide the issues raised here on a section 2 — 619 motion. “On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred. *** Until this threshold immunity question is resolved, discovery should not be allowed.” Harlow, 457 U.S. at 818, 73 L. Ed. 2d at 410, 102 S. Ct. at 2738.
Despite the concerns of the majority, there is no doubt that the junk vehicle ordinance here is valid. “General welfare accommodates the concept that an environment free from unsightliness and other visual intrusion enhances life and is a value that the police power will protect.” Bezayiff, 963 S.W.2d at 229. “The ordinance before us was unquestionably enacted for the purpose of promoting the health and protecting the safety of the members of the community.” Radcliff v. City of Berwyn, 129 Ill. App. 3d 70, 72, 472 N.E.2d 98, 100 (1984) (“the attractiveness of such unkempt areas to rats and vermin are well known”).
Counts I, II, III, and IV¡ based on the plaintiffs’ argument that they were denied due process in violation of the fourteenth amendment, must be dismissed. The argument that plaintiffs were not given due process is rejected by the very cases on which the majority relies. The fundamental requirements of procedural due process are notice and an opportunity to be heard. “There is no requirement, however, that a court must be involved in the process in order to comply with the constitution.” Conner, 897 F.2d at 1492-93. “A warrant is unnecessary when a municipality seizes property that has been declared a nuisance by means of established police power procedures.” Freeman v. City of Dallas, 242 F.3d 642, 644-45 (5th Cir. 2001) (en banc), cert. denied, 534 U.S. 817, 151 L. Ed. 2d 18, 122 S. Ct. 47 (2001). Plaintiffs here were afforded written notice, a hearing, and they could have sought administrative review or to enjoin the Village’s action in the circuit court. See Conner, 897 F.2d at 1493; see 65 ILCS 5/1—2.1—7 (West 2000). The determination that this was an inoperable vehicle was not an arbitrary determination.
Plaintiffs were present at a hearing at which the vehicle was found to be inoperable. Under the ordinance, the vehicle was then to be “disposed of or enclosed within a building by the said date set by the Board of Trustees” (Village of St. Joseph Amended Ordinance, tit. 6, ch. 5, Inoperable Motor Vehicles, § 6 — 5—6(B) (eff. October 9, 1990)) or it would be towed by the sheriff without further notice. Plaintiffs requested an additional alternative, that they be allowed to repair the vehicle before the date set, and the board granted that request. The ordinance wisely did not include repair as an alternative. It is possible for the sheriff to determine whether a vehicle has been disposed of or enclosed, but how does he determine whether it has been repaired? In the present case, how would the sheriff know that the vehicle had spent time in a repair shop or that the plaintiffs had taken it to work several times? Putting wheels on an inoperable vehicle and moving it may be nothing more than a ruse. The ordinance assigned the duty of determining whether the vehicle was operable to the board, not to the sheriff, and if plaintiffs had evidence indicating that the board should reconsider its finding of inoperability, plaintiffs should have made that information known to the board.
There is no suggestion here that the Board hearing was somehow continued or incomplete. The majority recognizes that the Board had found the vehicle to be inoperable, and the vehicle could have been towed “[i]f, at the end of the seven days, the van was still up on blocks and the wheels were still off.” 331 Ill. App. 3d at 1086. The majority holds, however, that there should have been a second hearing, a hearing “at a ‘meaningful time.’ ” 331 Ill. App. 3d at 1086, quoting Graff, 370 F. Supp. At 981. Under the majority’s analysis there would be a never-ending series of hearings to make sure the vehicle had not been repaired since the last hearing. Once the determination had been made that the vehicle was inoperable, plaintiffs had the burden to bring new facts warranting reconsideration to the attention of the board.
Counts V VI, VII and VIII, complaining that defendants’ failure to obtain a warrant violated the fourth amendment, must also be dismissed. The majority quotes Bezayiff and Conner for the proposition that an “ ‘ordinance is unconstitutional under the [fjourth [ajmendment insofar as it purports to authorize removal of vehicles from private property without a warrant.’ ” 331 Ill. App. 3d at 1081-82, quoting Bezayiff, 963 S.W.2d at 235; Conner, 897 F.2d at 1490. More recent and better-reasoned cases have held to the contrary. “The Eighth and Sixth Circuits have found no [fjourth [ajmendment bar to warrantless condemnation and eviction proceedings, where satisfactory administrative procedures preceded them.” Freeman, 242 F.3d at 652; Samuels v. Meriwether, 94 F.3d 1163, 1168 (8th Cir. 1996); Hroch v. City of Omaha, 4 F.3d 693, 697 (8th Cir. 1993); Flatford v. City of Monroe, 17 F.3d 162, 170 (6th Cir. 1994). “We disagree with Conner for reasons stated in Judge Trott’s dissent, 897 F.2d at 1494-98, and based on our evaluation of [fjourth [a]mendment reasonableness.” Freeman, 242 F.3d at 652.
The Supreme Court “did extend a warrant requirement of a sort to administrative inspections” in Camara. Freeman, 242 F.2d at 650. Camara, however, did not hold that the fourth amendment applied to administrative searches to the same extent it applied to criminal searches. The present case is further distinguishable from Camara, which involved a search to gather evidence of noncompliance. Here, the evidence of municipal code violations had already been obtained when the sheriff entered the property and the administrative adjudication of noncompliance had occurred. See Freeman, 242 F.3d at 650-51. In Camara, the inspectors had unbridled discretion; in the present case, the municipal code specified grounds on which a vehicle may be determined to be inoperable. The vehicle owners’ right to defend the case against their vehicle was procedurally secure. See Freeman, 242 F.3d at 651.
Permitting damages suits against governmental officials can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties. Harlow, 457 U.S. at 814, 73 L. Ed. 2d at 408, 102 S. Ct. at 2736. The Supreme Court has accordingly adopted a doctrine of qualified immunity, that “government officials performing discretionary functions [ ] generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow, 457 U.S. at 818, 73 L. Ed. 2d at 410, 102 S. Ct. at 2738; Davis v. Scherer, 468 U.S. 183, 197, 82 L. Ed. 2d 139, 151, 104 S. Ct. 3012, 3020-21 (1984). The unlawfulness must be apparent in the light of preexisting law. Anderson, 483 U.S. at 640, 97 L. Ed. 2d at 531, 107 S. Ct. at 3039. On summary judgment, the judge may appropriately determine, not only the currently applicable law, but whether “that law was clearly established at the time an action occurred.” Harlow, 457 U.S. at 818, 73 L. Ed. 2d at 410, 102 S. Ct. at 2738. The majority’s rule requiring a warrant is not only not clearly established, it is not the law. Qualified immunity applies.
Plaintiffs essentially argue, not that they were denied a hearing, but that a mistake was made after the hearing, resulting in their paying a $75 towing fee and the loss of their tools. Even assuming defendants made a mistake, a negligent deprivation of property, resulting from random and unauthorized conduct of a state actor, does not give rise to a procedural due process claim under the fourteenth amendment so long as the state provides an adequate postdeprivation remedy. Parratt, 451 U.S. at 543, 68 L. Ed. 2d at 433-34, 101 S. Ct. at 1917.