A Dollar For Chalking
Phyllis Pollack
Commercial | Civil Mediator at PGP Mediation - specializing in Employment, Personal Injury, Real Estate, Lemon Law, and Trademark disputes and Lecturer in Law at University of Southern California's Gould School of Law
A Dollar for Chalking!
In May 2019, I posted a?blog?about a plaintiff who challenged a parking ticket on the grounds that chalking her tires by the parking police in the City of Saginaw, Michigan (“City”)?violated her Fourth Amendment right against unreasonable searches as the City neither had her consent to do so nor a valid search?warrant.
The Defendant City filed a motion to dismiss which the trial court granted, ruling that although it was a “search” within the meaning of the Fourth Amendment, it was reasonable.
As one might expect, plaintiff appealed. The Sixth Circuit reversed, holding the chalking of the tires was an unlawful search within the meaning of the Fourth Amendment. It remanded the matter to the trial court for further proceedings consistent with its decision.
But the story does not end there. In a second?blog?posted in September 2021, I updated the saga. On remand to the district court, that court granted summary judgment in favor of the Defendant City agreeing with the City that the chalking was an “administrative search” and thus was not a violation of the Fourth Amendment.
Naturally, plaintiff appealed to the Sixth Circuit for a second time. That appellate court disagreed and so reversed and remanded it back to the district court for further proceedings.
As noted in an?article?posted by the American Bar Association on August 10, 2202, on remand, the district court ruled on August 8, 2022, that the chalking of tires constitutes an unreasonable search under the Fourth Amendment. It now appears that this lawsuit?morphed into a class action. The trial court ruled?that the Defendant City did NOT have to return the parking ticket fines to the class members but rather simply pay $1.00 for each instance of chalking the tires. (See: “Chalking tires is unconstitutional, federal judges rules, but plaintiffs won’t get traffic-ticket as damages.”)
One of the attorneys for the class noted the possibility that the Sixth Circuit will see this case yet again on the issue of damages: how much should the Defendant City be paying each class member? Under the district court’s ruling, the approximate 2,000 class members received more than 5,000 parking tickets!
While this case has nothing overtly to do with mediation, in another sense it does.??Not only does it highlight the creativity and “out of the box” thinking of the lawyers which is essential to resolving many disputes in mediation, it also highlights two sides of an issue: Is this case one of those very few that should NOT be mediated because an important public policy is involved, or it is just a “silly” case that is overtaxing and overburdening our already strained judicial system??Could the public policy and societal issues at stake be equally advanced by an “out of the box” mediated resolution thereby saving the resources of both the trial and appellate court??Couldn’t the same result have been reached through a negotiated settlement (with perhaps a consent decree being entered by the court as part of that settlement), as well?
In sum, no matter how “important” the case, mediation should always be considered. (But then I AM biased!)
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… Just something to think about.
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