             NOTICE
                                     2015 IL App (5th) 130544
 Decision filed 05/04/15.   The
 text of this decision may be            NO. 5-13-0544
 changed or corrected prior to
 the filing of a Peti ion for
 Rehearing or the disposition of            IN THE
 the same.

                                   APPELLATE COURT OF ILLINOIS

                             FIFTH DISTRICT
________________________________________________________________________

MATTHEW E. CARTER, on Behalf of Himself and )     Appeal from the
All Others Similarly Situated,              )     Circuit Court of
                                            )     Madison County.
      Plaintiffs-Appellants,                )
                                            )
v.                                          )     Nos. 11-L-1304,
                                            )     11-L-1305, 11-L-1306 &
                                            )     11-L-1307
THE CITY OF ALTON, THE CITY OF              )
COLLINSVILLE, THE CITY OF GRANITE CITY, )
and THE CITY OF EDWARDSVILLE,               )     Honorable
                                            )     Thomas W. Chapman,
      Defendants-Appellees.                 )     Judge, presiding.
________________________________________________________________________

         JUSTICE CHAPMAN delivered the judgment of the court, with opinion.
         Justice Schwarm concurred in the judgment and opinion.
         Justice Moore* specially concurred, with opinion.

                                         OPINION

¶1       This appeal involves municipal ordinances in four Illinois communities which

allow the local police departments to charge vehicle owners an "administrative fee" when



         *Justice Spomer was originally assigned to participate in this case. Justice Moore

was substituted on the panel subsequent to Justice Spomer's retirement and has read the

briefs and listened to the tape of oral argument.

                                               1
their vehicles are towed and impounded. At issue is whether these fees comport with the

requirements of substantive due process. The plaintiffs filed complaints against each of

the cities, arguing that the ordinances are invalid because the fees charged do not bear a

reasonable relationship to the cities' actual administrative costs. All four cities filed

motions to dismiss the complaints, which were granted by the trial court. The plaintiffs

appeal, arguing that (1) none of the defendants has asserted an affirmative matter

defeating the plaintiffs' claims; and (2) their complaints state a basis upon which relief

can be granted. We reverse.

¶2                            The Ordinances at Issue

¶3    In 2009, the City of Edwardsville enacted ordinances providing that a motor

vehicle is subject to impoundment if it is operated with the express or implied consent of

the owner and used in connection with various criminal offenses, including driving under

the influence (DUI). If a vehicle is impounded pursuant to this provision, the owner is

liable to the City of Edwardsville for a $300 "administrative processing fee" in addition

to towing and storage fees. Edwardsville Code of Ordinances § 114-411(a) (eff. May 4,

2009). This fee is in addition to any penalties imposed for the underlying violation.

Edwardsville Code of Ordinances § 114-412(c) (eff. May 4, 2009).

¶4    These ordinances were proposed by Edwardsville's chief of police, James Bedell.

In a memorandum to the public safety committee, Chief Bedell noted that similar

legislation had been adopted by other communities throughout the state. He stated that

he was proposing the administrative fee "as a way to recoup the cost we currently

absorb."   He noted that at the time, Madison County was proposing adopting an

                                            2
administrative fee of $300, and that similar fees charged throughout Illinois ranged from

$300 to $500. Chief Bedell further stated that the police department spent, on average,

more than $300 per arrest, but that $300 would be an appropriate amount to recoup.

Finally, he estimated that, "based on a minimum of 300 vehicle tows per year," $90,000

would be recouped through the administrative fees, which would go to the general fund

of the city.

¶5       In 2010, the City of Alton enacted ordinance No. 7164, which added provisions to

the Alton city code relating to towing and impoundment of vehicles. The stated purpose

of the ordinance is to allow the city to "recover a portion of the resources expended in the

towing and impoundment of motor vehicles." A statement of purpose preceding the

ordinance provides that (1) certain activities negatively affect the quality of life in Alton

and the health, safety, and welfare of people in the community; (2) certain crimes require

members of the police force "to devote a significant amount of time to [the] processing of

motor vehicles"; and (3) time spent on impoundment of vehicles takes away time the

officers could spend working to protect the residents of Alton. The statement of purpose

further provides that for these reasons, the city council finds it to be in the best interests

of the city to adopt impoundment procedures that allow the city to recoup some of its

costs.

¶6       The ordinance provides a three-tiered fee system. A level 1 administrative fee is

$500, a level 2 administrative fee is $200, and a level 3 administrative fee is $100. Alton

City Code § 8-8-11(A) (eff. Jan. 1, 2010). A level 1 fee of $500 is charged if the vehicle

is towed in connection with an arrest for any felony or certain enumerated traffic

                                              3
offenses, including DUI. Alton City Code § 8-8-10(A)(6) (eff. Jan. 1, 2010). A level 2

fee is charged if the vehicle is impounded in connection with the custodial arrest of a

suspect for misdemeanors or traffic offenses that are not included in that list. Alton City

Code § 8-8-10(A)(7) (eff. Jan. 1, 2010). A level 3 administrative fee is charged if the

vehicle is towed and impounded for any other reason. Alton City Code § 8-8-10(A)(8)

(eff. Jan. 1, 2010). Those reasons include abandoned, disabled, and illegally parked

vehicles under some circumstances. See Alton City Code § 8-8-10(A)(1) to (5) (eff. Jan.

1, 2010).

¶7     In 2008, the City of Collinsville enacted similar provisions.      A statement of

purpose provides that "the process associated with private motor vehicles that have been

towed and/or impounded utilizes City resources in the form of Police Department

personnel time." The statement further states that "in order to recover the expenditure of

resources, it is in the best interest of the City to adopt rules and regulations associated

with the impoundment of private motor vehicles." Collinsville Ordinance No. 4056 (eff.

Apr. 29, 2008). The ordinance provides a two-tier fee structure. A level 1 administrative

fee is $500, while a level 2 administrative fee is $150. Collinsville Municipal Code

§ 10.12.010 (eff. Apr. 29, 2008). The owner of a vehicle is charged a level 1 fee of $500

if the vehicle is towed and impounded because it has been used in connection with

several     enumerated   offenses,   including   DUI.     Collinsville   Municipal   Code

§ 10.12.020(A) (eff. Apr. 29, 2008). A level 2 administrative fee is charged if the vehicle

is used in the commission of any offenses other than the enumerated offenses.

Collinsville Municipal Code § 10.12.020(B) (eff. Apr. 29, 2008); see also Collinsville

                                             4
Municipal Code § 4.01.010(38) (including these vehicle impoundment fees in a list of

fees the city charges for services such as various permit applications, business license

applications, zoning applications, and public records searches).

¶8     The City of Granite City enacted a similar impoundment ordinance in 2009. The

Granite City ordinance likewise imposes a two-tier fee structure, with a level 1

administrative fee of $400 and a level 2 administrative fee of $150. Granite City Code of

Ordinances § 10.50.010 (eff. Apr. 6, 2009). A level 1 fee is charged if a vehicle is towed

and impounded due to its use in connection with any of a long list of enumerated

offenses, including DUI. Granite City Code of Ordinances § 10.50.020(A) (eff. Apr. 6,

2009). A level 2 administrative fee is charged if the vehicle is towed and impounded due

to its use in connection with any other offense.       Granite City Code of Ordinances

§ 10.50.020(B) (eff. Apr. 6, 2009).      In order to retrieve a vehicle that has been

impounded, the owner must pay the applicable administrative fee plus towing and storage

fees and provide proof of ownership, proof of insurance, and a valid driver's license.

Granite City Code of Ordinances § 10.50.050 (eff. Apr. 6, 2009).

¶9                            The Trial Court Proceedings

¶ 10   On December 6, 2011, the four named plaintiffs, represented by the same counsel,

filed the petitions that form the basis of this appeal. Each petition alleged that the

plaintiff was arrested for DUI, that the plaintiff's car was towed and impounded pursuant

to one of the ordinances, and that the plaintiff was required to pay the administrative fee

mandated by the applicable ordinance.       The petitions challenged the administrative

processing fee charged by Edwardsville and the level 1 administrative fees charged by

                                             5
the other three cities. They alleged that these "tow release fees *** require minimal time

and cost" to the defendants, "requiring only that Defendants' Police Department

employees write a receipt for payment" of the fees.       They further alleged that "on

information and belief," the defendants charged significantly less to provide similar

services in other contexts.     They argued that the fees charged had no reasonable

relationship to the stated purpose of the ordinances and, as such, violated principles of

substantive due process. The court entered orders in each case directing the plaintiffs to

specify whether they were challenging the ordinances on their face or as applied. The

plaintiffs filed amended petitions specifically alleging that the ordinances were facially

invalid.

¶ 11   Each of the cities filed motions to dismiss and amended motion to dismiss

pursuant to sections 2-615, 2-619, and 2-619.1 of the Code of Civil Procedure (735 ILCS

5/2-615, 2-619, 2-619.1 (West 2012)). In these motions, the defendants argued that (1)

the plaintiffs' complaints misstated the purpose of the ordinances; (2) the cities incur

costs for officers to spend time arresting drunken drivers, booking them into jail, and

filling out paperwork associated with such arrests and the towing and impoundment of

vehicles; (3) similar fees had been upheld; and (4) the plaintiffs failed to exhaust their

administrative remedies prior to filing this lawsuit.

¶ 12   In support of its motions to dismiss, the City of Alton pointed to two studies

designed to determine the costs it incurred as a result of DUI arrests. One study was

conducted by the Alton police department, and the other was conducted by an

independent consulting firm. The studies took into account the salaries paid to police

                                              6
officers for conducting traffic stops and conducting inventory searches of vehicles to be

towed. They also considered the costs of booking defendants, preparing DUI reports, the

cost of arraignment, and the costs of collecting and processing evidence, including blood

tests. The studies also considered the costs of housing prisoners.

¶ 13   On October 25, 2013, the trial court entered a 13-page order granting the motions

to dismiss in all four cases. The court explained that substantive due process does not

preclude a municipality for imposing a "civil penalty" for using a vehicle−or allowing a

vehicle to be used−in the commission of certain offenses. (Emphasis added.) The court

noted that fees are distinguished from fines by their compensatory purpose, but noted that

the line between a fee and a fine is often unclear. The court pointed out that a charge that

is labeled a fee might in reality be a fine if it has a punitive purpose.

¶ 14   The court then discussed the Second District's decision in People v. Ratliff, 282 Ill.

App. 3d 707 (1996). That case involved a $500 impoundment charge that was labeled a

fine, but the Second District found that it actually constituted a fee because it was a

"reasonable proxy for the likely actual administrative costs incurred." Ratliff, 282 Ill.

App. 3d at 713. The trial court found the facts of this case to be "strikingly similar" to

those in Ratliff. Relying in large part on Ratliff, the court dismissed the plaintiffs'

petitions.

¶ 15                                This Appeal

¶ 16   The plaintiffs filed the instant appeal on November 8, 2013. They argue that the

trial court erred in dismissing their complaints because (1) none of the cities has asserted

an affirmative matter that would preclude the cases from going forward; and (2) taking

                                               7
the allegations of the complaints as true, the complaints each state a basis upon which

relief can be granted. We agree.

¶ 17   A motion to dismiss filed pursuant to section 2-615 of the Code of Civil Procedure

(735 ILCS 5/2-615 (West 2012)) admits all well-pleaded facts in the complaint. The

court must interpret the complaint in the light most favorable to the plaintiff. Nesby v.

Country Mutual Insurance Co., 346 Ill. App. 3d 564, 566 (2004). Dismissal is proper

only if it is clear from the pleadings that there is no set of facts the plaintiffs can prove

which would entitle them to relief.      Tuite v. Corbitt, 224 Ill. 2d 490, 510 (2006).

Dismissal pursuant to a 2-619 motion is proper if the plaintiff's claim is barred by an

" 'affirmative matter[ ] avoiding the legal effect of or defeating the claim.' " Harder v.

First Capital Bank, 332 Ill. App. 3d 740, 743 (2002) (quoting 735 ILCS 5/2-619(a)(9)

(West 1998)). We review de novo rulings on both types of motions. Harder, 332 Ill.

App. 3d at 743.

¶ 18   This appeal involves challenges to the constitutionality of municipal ordinances.

Constitutionality is a question of law which we review de novo. Jackson v. City of

Chicago, 2012 IL App (1st) 111044, ¶ 20 (citing Lyon v. Department of Children &

Family Services, 209 Ill. 2d 264, 271 (2004)). Our determination is guided by the same

principles applicable in challenges to the constitutionality of statutes. See Jackson, 2012

IL App (1st) 111044, ¶ 20 (quoting Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 306

(2008)). Ordinances are presumed constitutional, and the party challenging them has the

burden to demonstrate a "clear constitutional violation." Jackson, 2012 IL App (1st)

111044, ¶ 20.

                                             8
¶ 19   The parties agree that the ordinances at issue are subject to a rational basis test.

See People v. Lindner, 127 Ill. 2d 174, 179 (1989) (explaining that this is the standard

when no fundamental constitutional right is implicated). This means that they will pass

constitutional muster if they are rationally related to a legitimate governmental interest

and are not arbitrary or discriminatory. People v. Jones, 223 Ill. 2d 569, 596 (2006). In

applying this test, courts must first identify the interest the ordinance is meant to advance.

Lindner, 127 Ill. 2d at 180. Here, as set out in some detail previously, all four cities'

stated purpose in enacting the ordinances at issue was to recoup costs associated with the

arrests of defendants for various criminal offenses involving motor vehicles. A fee is

rationally related to this purpose if the amount charged bears some reasonable

relationship to the actual costs it is intended to recoup. Jones, 223 Ill. 2d at 585. The fee

need not represent the precise costs incurred by the cities. However, it "must at least

relate" to those actual costs. (Emphasis in original.) Jones, 223 Ill. 2d at 585. In

addition, if a fee is charged in connection with a criminal prosecution, there must be

some relationship between the offense charged and the use to which the funds generated

by the fee are put. People v. Gildart, 377 Ill. App. 3d 39, 41 (2007).

¶ 20   The plaintiffs have alleged that the ordinances are facially invalid. Thus, they

must demonstrate that there are no circumstances under which the ordinances would be

constitutional. Jackson, 2012 IL App (1st) 111044, ¶ 25. The rational basis standard is

deferential−especially where, as here, the ordinance is challenged on its face. However,

it is not toothless. Jones, 223 Ill. 2d at 596. It is worth noting that the case before us

arises at a time when courts are increasingly concerned about the misuse of fees and fines

                                              9
as means of generating revenue. See State v. Blazina, 344 P.3d 680, 683 (Wash. 2015)

(pointing to a national concern over the problems associated with court-imposed fees and

fines, including the "doubtful recoupment of money by the government, and inequities in

administration"). As such, while we will not lightly find an ordinance unconstitutional,

we do not believe it would be appropriate to be overly deferential.

¶ 21   The plaintiffs first argue that none of the defendants has raised an affirmative

matter that would defeat their claims. We agree. The only affirmative matter asserted in

the motions to dismiss was an allegation that the plaintiffs had failed to exhaust their

administrative remedies before challenging the validity of the ordinances. Because the

plaintiffs clarified that they were challenging the ordinances on their face, they are not

required to do so. See Arvia v. Madigan, 209 Ill. 2d 520, 532 (2004). The remainder of

the defendants' arguments addressed the adequacy of the complaints to state a claim or

denied the allegations in the complaints. See Daniels v. Union Pacific R.R. Co., 388 Ill.

App. 3d 850, 855 (2009) (explaining that an "affirmative matter" is a defense other than

the negation of the allegations supporting the elements of the plaintiff's claim). Thus, we

need only address the adequacy of the complaints to state a claim upon which relief can

be granted.

¶ 22   The plaintiffs next argue that their complaints should not have been dismissed

pursuant to section 2-615 because they adequately state claims for relief. We agree. As

discussed previously, the plaintiffs alleged that there is no reasonable relationship

between the fees charged under the ordinances and the actual administrative costs

incurred by the cities. They alleged that the administrative cost to each city in imposing

                                            10
what the complaints refer to as a "tow release fee" is the cost of a city employee writing a

receipt for vehicle owners to present in order to obtain the release of their vehicles. The

City of Alton argues that this allegation misstates the purpose of its ordinance. All four

defendants argue that the fees they charge are rationally related to their interest in

recovering the costs associated with the arrest and prosecution of defendants. At trial,

they asserted that they incur additional costs, including the salaries paid to police officers

and other employees for the time they spend arresting defendants, processing evidence at

the crime scene, investigating the offenses charged, and conducting inventories of the

vehicles impounded. They also pointed to the cost of housing defendants in jail.

¶ 23   We find the defendants' argument unpersuasive for three reasons.             First and

foremost, this matter comes to us after being dismissed on the pleadings. As discussed,

all four defendants have alleged that they incur various expenses in arresting defendants

for DUI and towing and impounding vehicles in connection with these arrests. The City

of Alton attached to its motion to dismiss two detailed studies showing the average costs

in officer salaries for various tasks associated with DUI arrests. The City of Edwardsville

provided a memo from its police chief asserting that his department spent, on average,

more than $300 on each arrest. However, the plaintiffs were not required to prove their

case to survive a motion to dismiss. The fact that the defendants dispute the plaintiffs'

allegations and have some evidence to support their contentions does not mean that

dismissal at the pleading stage is warranted.

¶ 24   In addition, many of the costs the defendants point to are incurred handling any

arrest. Police officers must process evidence, investigate cases, and book defendants into

                                             11
the county jail whether or not a vehicle is involved, yet the ordinances charge a fee to

recoup these costs only if a vehicle is impounded. As stated earlier, in order to comport

with the requirements of substantive due process, an ordinance must not be arbitrary or

discriminatory. See Jones, 223 Ill. 2d at 596. Charging such fees merely because a

vehicle is used in connection with an offense is arbitrary unless there is some reason to

treat such offenses differently than offenses in which a vehicle is not used. Thus, we do

not believe it is appropriate to consider costs incurred that are not unique to offenses

committed with vehicles.

¶ 25   The defendants have also alleged that they incur administrative costs that are

unique to handling offenses involving vehicles. For example, the studies submitted by

the City of Alton in support of its motion to dismiss include the salary paid to police

officers for the time it takes officers to conduct inventory searches of impounded

vehicles. In its brief on appeal, the City of Alton notes that the towing and impoundment

of a vehicle might require the presence of an officer at the scene to direct traffic around a

vehicle for a significant amount of time. Resolution of the plaintiffs' claims requires the

trial court to make a factual determination as to whether the fees charged are reasonably

related to those costs.

¶ 26   We also note that criminal defendants are charged fees for some of these costs

under state law. See, e.g., 730 ILCS 5/5-9-1(c-5), (c-7) (West 2012) (charging a $100 fee

to defendants convicted of DUI, a portion of which is to be used "to defray administrative

costs" incurred by the courts); 730 ILCS 5/5-9-1.4 (West 2012) (charging a crime lab

analysis fee to defendants convicted of drug-related offenses); 730 ILCS 5/5-9-1.9 (West

                                             12
2012) (charging a DUI analysis fee to defendants convicted of DUI). It is not clear on the

record before us how much of the funds generated by such fees are given to

municipalities to defray their costs. To the extent the cities receive funds from fees

charged by the state, fees that duplicate those funds are not reasonably related to the

purpose of recovering costs. Thus, resolution of the plaintiffs' claims also requires a

factual determination as to the extent to which the cities are already reimbursed for their

expenses related to towing and impoundment. For these reasons, resolution of the matter

at the pleading stage was not appropriate.

¶ 27   The defendants argue, however, that the plaintiffs' complaints must fail as a matter

of law because Illinois courts have already upheld identical charges. In support of this

contention, the defendants cite People v. Jaudon, 307 Ill. App. 3d 427 (1999), Towers v.

City of Chicago, 173 F.3d 619 (7th Cir. 1999), Jackson v. City of Chicago, and People v.

Ratliff. We find all four cases inapposite because they did not address the question we

are called upon to resolve in this case.

¶ 28   We note that all four cases turn, in part, on the distinction between a fee and a fine.

As the trial court correctly pointed out, the fact that the ordinances at issue in this case

label the charges "administrative fees" does not necessarily preclude a finding that they

are actually fines. See Jones, 223 Ill. 2d at 599. However, none of the defendants has

argued that the ordinances impose fines or serve a punitive purpose; they argue that the

fees are rationally related to their interest in recouping the costs associated with DUI

arrests and the towing and impoundment of vehicles as a result of such arrests. We now

consider each of the four cases they cite in turn.

                                             13
¶ 29   In Jaudon, the defendants in four consolidated cases were arrested and charged

with various weapons charges and traffic violations. The vehicles they were driving at

the times of their arrests were towed and impounded pursuant to a Chicago ordinance.

Jaudon, 307 Ill. App. 3d at 429. The ordinance imposed a $500 fine on the owners of the

vehicles impounded pursuant to the ordinance. Jaudon, 307 Ill. App. 3d at 430-31 (citing

Chicago Municipal Code § 8-20-015(a) (amended July 10, 1996)).                As with the

ordinances involved in this case, the fine imposed was charged in addition to towing and

storage charges. Jaudon, 307 Ill. App. 3d at 431 (citing Chicago Municipal Code § 8-20-

015 (amended July 10, 1996)).

¶ 30   The defendants there raised three constitutional issues with respect to the $500

fine. First, they argued that it violated substantive due process because it did not include

a defense for an innocent third-party vehicle owner. Jaudon, 307 Ill. App. 3d at 435.

Only one of the defendants was the owner of the vehicle involved. See Jaudon, 307 Ill.

App. 3d at 433-34 (noting that two of the defendants did not own the vehicles they were

driving when arrested and explaining that there was conflicting evidence as to whether a

third defendant co-owned the car with his grandmother). The court noted that none of the

defendants were innocent vehicle owners, and therefore found that they lacked standing

to raise this issue. Jaudon, 307 Ill. App. 3d at 435. However, the court went on to note

that it would reject their argument even if they did have standing. The court explained

that imposing a fine on even innocent owners could induce vehicle owners to be more

careful to avoid lending their vehicles to others who might use the vehicles in the

commission of offenses. Thus, the court explained, imposing the fine bore a rational

                                            14
relationship to the legitimate interest in regulating firearms possession and transportation.

Jaudon, 307 Ill. App. 3d at 436-37.

¶ 31   The defendants' second argument was that the $500 fine violated the excessive

fines clause of the eighth amendment to the United States Constitution. Jaudon, 307 Ill.

App. 3d at 438; see Towers, 173 F.3d at 624 (explaining that the excessive fines clause

applies to civil penalties if they serve the purpose of deterrence or retribution (citing

Austin v. United States, 509 U.S. 602, 610 (1993))). A fine or penalty violates this clause

if it is grossly disproportionate to the gravity of the offense for which it is being imposed.

Jaudon, 307 Ill. App. 3d at 439 (citing United States v. Bajakajian, 524 U.S. 321 (1998)).

Applying this standard, the Jaudon court found that the $500 fine was not grossly

disproportionate to the actions being sanctioned.        Jaudon, 307 Ill. App. 3d at 440.

Relying on Towers, the Jaudon court found that the fine was high enough to have a

deterrent effect, yet not so high as to be grossly disproportionate to the sanctioned

behavior. Jaudon, 307 Ill. App. 3d at 440 (quoting Towers, 173 F.3d at 626).

¶ 32   Finally, the defendant who was also the owner of an impounded vehicle argued

that the fine violated principles of double jeopardy. Jaudon, 307 Ill. App. 3d at 440. As

we will explain, this was the primary issue in Ratliff, a case relied on by the trial court. In

Jaudon, however, the court did not need to discuss the issue in any detail. The court

found that because the charges on the underlying weapons charge were dismissed at the

preliminary hearing, jeopardy never attached. Jaudon, 307 Ill. App. 3d at 440.

¶ 33   Towers involved a challenge to the same Chicago ordinance that was at issue in

Jaudon along with a similar ordinance imposing a $500 administrative penalty on the

                                              15
owner of any vehicle impounded because illegal drugs are found in the vehicle. Towers,

173 F.3d at 621. The plaintiffs there were the owners of vehicles that were impounded

pursuant to these ordinances. Both vehicles were driven by other individuals when those

individuals were arrested and drugs and weapons were found in the vehicles. Towers,

173 F.3d at 621-22.

¶ 34   As in Jaudon, the plaintiffs challenged the ordinances on the basis of the excessive

fines clause. Towers, 173 F.3d at 623. The court noted that this clause was applicable to

the fines at issue because they served "the punitive purpose of deterring owners from

allowing their vehicles to be used for prohibited purposes." Towers, 173 F.3d at 624.

The plaintiffs argued that the penalty was excessive because it bore "no relationship to

their culpability as innocent owners."     Towers, 173 F.3d at 624.        In rejecting this

argument, the court noted that by allowing others to use their vehicles for illegal

activities, the plaintiffs facilitated those activities, something the city was "on solid

ground" in seeking to deter. Towers, 173 F.3d at 625. The court emphasized that the fine

had to be high enough to have a deterrent effect. Towers, 173 F.3d at 626. The court

concluded that $500 was high enough to serve this purpose without being "grossly out of

proportion to the activity that the City is seeking to deter." Towers, 173 F.3d at 626.

¶ 35   The plaintiffs in Towers also argued that the lack of a defense for innocent owners

ran afoul of the requirements of substantive due process. In rejecting this contention, the

court found that the fine served a legitimate purpose in deterring unlawful activity.

Towers, 173 F.3d at 626-27. The court concluded that this purpose was served by

imposing the fine even on an innocent owner because it might deter a vehicle owner from

                                             16
allowing his vehicle to be used by another individual for illegal activity. Towers, 173

F.3d at 627.

¶ 36   Jackson involved a more recent challenge to a Chicago impoundment ordinance.

There, the plaintiff's vehicle was towed and impounded when police arrested two

individuals for possession of cannabis while in her vehicle. Jackson, 2012 IL App (1st)

111044, ¶ 6. The plaintiff was charged an administrative penalty of $1,000 along with

towing and storage fees. Jackson, 2012 IL App (1st) 111044, ¶ 10. On appeal, the

plaintiff argued that the ordinance imposing the penalty violated substantive due process

because it did not include an innocent owner defense. Jackson, 2012 IL App (1st)

111044, ¶ 32. The court rejected this argument for the same reason the courts rejected

identical arguments in Jaudon and Towers−even without innocent owner defenses,

impoundment penalties induce vehicle owners "to exercise greater care" in lending their

vehicles to others so as to avoid the use of their vehicles in the commission of crimes.

(Internal quotation marks omitted.) Jackson, 2012 IL App (1st) 111044, ¶ 41.

¶ 37   Notably absent from all three of these cases is any analysis of the relationship

between the amount of the fine and any costs the city was attempting to recoup, the issue

before us. This is not surprising. Despite the factual similarities to our case, the Jaudon,

Towers, and Jackson courts were not called upon to decide this question because the

charges at issue were fines, not fees. Fees and fines serve different purposes. A fee is

intended to recoup the costs incurred in providing a service, while a fine is intended to be

punitive or act as a deterrent.    Jones, 223 Ill. 2d at 581-82.      "This is the central

characteristic which separates a fee from a fine." (Emphasis in original.) Jones, 223 Ill.

                                            17
2d at 600. A fine, logically, will be reasonably related to its purpose if it is likely to act

as a deterrent. See Jackson, 2012 IL App (1st) 111044, ¶ 34; Jaudon, 307 Ill. App. 3d at

436; Towers, 173 F.3d at 625. By contrast, as previously discussed, a fee is rationally

related to its purpose if it bears some reasonable relationship to the costs it is intended to

defray. Jones, 223 Ill. 2d at 585. Moreover, state and local governments have broader

authority in imposing fines than they do in charging fees. Gildart, 377 Ill. App. 3d at 41

(citing Jones, 223 Ill. 2d at 602). Because of this distinction, we find Jaudon, Towers,

and Jones distinguishable from the case before us.

¶ 38   In Ratliff, the case relied upon by the trial court, the Second District considered an

Aurora ordinance similar to the Chicago ordinances at issue in Jaudon and Towers. Like

the Chicago ordinances, the Aurora ordinance was labeled a " 'penalty.' " Ratliff, 282 Ill.

App. 3d at 709 (quoting Aurora Code of Ordinances § 29-48 (eff. Dec. 21, 1993)). As we

will explain, however, the Ratliff court concluded that the charge was, in reality, a fee

rather than a fine. Ratliff, 282 Ill. App. 3d at 715.

¶ 39   The defendant in Ratliff was arrested when police officers responded to a domestic

violence call. The officers found the defendant with his vehicle in a parking lot. They

searched the vehicle and found a weapon. Ratliff, 282 Ill. App. 3d at 708-09. The

vehicle was impounded, and the defendant paid the $500 fine in order to retrieve his

vehicle. Ratliff, 282 Ill. App. 3d at 710. He was subsequently charged with unlawful

possession of a weapon by a felon and possession of a weapon without a firearm owner's

identification card. Ratliff, 282 Ill. App. 3d at 708. The trial court dismissed these



                                              18
charges on grounds of double jeopardy, and the State appealed. Ratliff, 282 Ill. App. 3d

at 708.

¶ 40      At issue in the appeal was whether the civil administrative penalty constituted

punishment for purposes of double jeopardy. Ratliff, 282 Ill. App. 3d at 713. The court

explained that the determinative issue was whether the amount of the penalty was " ' "so

extreme" and "so divorced" from the penalty's nonpunitive purpose' " of compensation

that it must be deemed to constitute punishment. Ratliff, 282 Ill. App. 3d at 713 (quoting

United States v. Ursery, 518 U.S. 267, 284 (1996)). It was in this context that the Ratliff

court found that "$500 is a reasonable proxy for the likely actual administrative costs

incurred by Aurora" in conducting proceedings under the impoundment ordinance.

Ratliff, 282 Ill. App. 3d at 715. The court went on to state: "Additionally, we find that the

$500 sanction is proportionate to the likely combined costs of the [impoundment]

administrative proceeding and the societal costs caused by defendants' use of their

automobiles to commit one of the predicate offenses." Ratliff, 282 Ill. App. 3d at 715.

¶ 41      We acknowledge that this language does provide some support for the defendants'

position in this case. However, we do not find Ratliff controlling for two reasons. First,

Ratliff did not involve a challenge to a fee on substantive due process grounds. Indeed,

the defendant in Ratliff did not challenge the validity of the fee at all. Rather, after

paying the fee, he challenged his subsequent criminal prosecution for essentially the same

conduct. See Ratliff, 282 Ill. App. 3d at 710. As such, the court was not called upon to

analyze whether the amount of the fee was reasonably related to the costs incurred by the

City of Aurora. The court found that the amount of the charge was not so extreme or "so

                                             19
divorced" from a compensatory purpose that it must constitute punishment rather than

compensation.       In other words, the court found that the charge in fact served a

compensatory purpose. This is not the same as finding that the fee is a constitutionally

reasonable means of affecting that compensatory purpose.

¶ 42      Second, to the extent Ratliff can be read as holding that a $500 impoundment fee is

reasonable as a matter of law, we do not find it persuasive. The court provided no

analysis or discussion of what costs the City of Aurora actually incurred, and, as the trial

court in this case noted, it did not explain what it meant by "societal costs." We also note

that the Towers court reached the opposite conclusion in construing a similar ordinance.

See Towers, 173 F.3d at 624 (noting that the $500 charge did not appear to compensate

the city for any costs).

¶ 43      In support of its conclusion, the Ratliff court stated that "Aurora has implicitly

made a legislative finding [that] its costs and damages associated with violations of

section 29-48 equal $500 plus the costs of towing and storage." Ratliff, 282 Ill. App. 3d

at 716. Although the rational basis test is deferential, we hold that it is not deferential

enough to allow a court to assume that a fee is a reasonable approximation of a city's

actual costs because the city made an implicit finding to that effect. To hold otherwise

would render the rational basis test toothless. We thus believe it is not appropriate to

follow Ratliff. See People v. Pruitt, 239 Ill. App. 3d 200, 209 (1992) (noting that Illinois

courts of appeal are not obligated to follow the decisions of other districts of the appellate

court).



                                              20
¶ 44   Finally, the defendants point to section 11-208.7 of the Illinois Vehicle Code (625

ILCS 5/11-208.7 (West 2012)).        This statute, enacted after the plaintiffs filed their

complaints in this matter, permits non-home-rule municipalities to charge "a reasonable

administrative fee" related to the costs associated with impoundment of vehicles under

certain circumstances.        625 ILCS 5/11-208.7(a) (West 2012).          The defendants

acknowledge that the statute is not directly applicable to them because they are all home

rule municipalities. However, they argue that the statute provides support for their

position that their ordinances are valid. We are not persuaded. As the plaintiffs point

out, the statute expressly requires that any fee charged must be "reasonable." 625 ILCS

5/11-208.7(a) (West 2012). The statute does not purport to draw a line between what is

reasonable and what is not reasonable.       Moreover, the legislature cannot grant the

authority to any municipality to charge a fee that does not comport with the requirements

of substantive due process.

¶ 45   In closing, we note that we express no opinion as to the ultimate question of

whether the fees charged by these ordinances are reasonably related to the costs incurred

by the defendants. We hold only that the court erred in dismissing the matter at the

pleading stage. We therefore reverse the order of the trial court dismissing the plaintiffs'

complaints and remand this cause for further proceedings consistent with this decision.

¶ 46   Reversed and remanded.



¶ 47   JUSTICE MOORE, specially concurring.



                                            21
¶ 48   I agree with my colleagues that the circuit court erred in dismissing the plaintiffs'

complaint, because for the purposes of a motion to dismiss, the court must take the

allegations in the complaint as true. Iseberg v. Gross, 366 Ill. App. 3d 857, 860 (2006).

As the majority aptly explains, the plaintiffs have alleged facts that could potentially lead

to a legal conclusion that the fees imposed by the ordinances violate substantive due

process. The defendants counter that the fees are rationally related to their interest in

recovering certain costs. Although the defendants attached some evidence in support of

their position to their motions to dismiss, the plaintiffs have not yet had the opportunity to

conduct discovery. Once discovery is complete, the circuit court must evaluate the

evidence presented during an evidentiary hearing or in a summary proceeding and make a

determination as to whether the amount of the fees charged is rationally related to the

defendants' legitimate governmental interests.

¶ 49   I write specially because in my opinion, it is premature and advisory for this court,

at this stage of the proceedings, to discuss in detail the potential invalidity of the fees at

issue. That determination should be made by the circuit court upon full development of

the record. We do not yet know what evidence the parties will adduce in support of their

positions, and we do not know how that evidence may affect the direction this case takes.

The nature of the evidence will likely impact the parameters of the legal analysis that will

need to be employed, and the exact body of law to be applied, in determining whether the

ordinances at issue comport with substantive due process. For this reason, I respectfully

specially concur.



                                             22
                                2015 IL App (5th) 130544
                                     NO. 5-13-0544
                                         IN THE
                           APPELLATE COURT OF ILLINOIS
                               FIFTH DISTRICT
______________________________________________________________________________

MATTHEW E. CARTER, on Behalf of Himself and     )     Appeal from the
All Others Similarly Situated,                  )     Circuit Court of
                                                )     Madison County.
      Plaintiffs-Appellants,                    )
                                                )
v.                                              )     Nos. 11-L-1304,
                                                )     11-L-1305, 11-L-1306 &
                                                )     11-L-1307
THE CITY OF ALTON, THE CITY OF                  )
COLLINSVILLE, THE CITY OF GRANITE CITY,         )
and THE CITY OF EDWARDSVILLE,                   )     Honorable
                                                )     Thomas W. Chapman,
      Defendants-Appellees.                     )     Judge, presiding.
______________________________________________________________________________

Opinion Filed:         May 4, 2015
______________________________________________________________________________

Justices:           Honorable Melissa A. Chapman, J.

                  Honorable S. Gene Schwarm, J., concurred
                  Honorable James R. Moore, J., specially concurred
______________________________________________________________________________

Attorneys         Brian L. Polinske, Donna Morrison Polinske, Polinske & Associates, P.C.,
for               701 North Main Street, Edwardsville, IL 62025
Appellants
______________________________________________________________________________

Attorneys         James E. Schrempf, Schrempf, Kelly, Napp & Darr, Ltd., 307 Henry
for               Street, Suite 415, P.O. Box 725, Alton, IL 62002 (for The City of
Appellees         Alton); Steven C. Giacoletto, Giacoletto Law Office, P.C., 30 Summer
                  Tree Lane, Collinsville, IL 62234 (for The City of Collinsville);
                  Michael K. Nowak, Alvin C. Paulson, Becker, Paulson, Hoerner &
                  Thompson, P.C., 5111 West Main Street, Belleville, IL 62226 (for The
                  City of Edwardsville and The City of Granite City)
______________________________________________________________________________
