When it comes to parking enforcement, the City of Milwaukee has a problem. Local media have concluded from interviews and public records that the City issues parking tickets without paying close attention to whether they are warranted. In 2011 alone, the City reportedly canceled over 38,000 parking tickets, often because they were plainly unjustified. Nearly 8,000 tickets, for example, were issued for “expired” parking meters that in fact had not expired. Given personal experience, I have little doubt that these figures are accurate.
The extremely high number of unwarranted tickets is not an accident. Instead, it appears to be the result of a policy to issue tickets indiscriminately for the singular purpose of revenue enhancement. The City’s manager for parking enforcement practically admits as much; he recently told a local news station that the policy “is to issue the citation and straighten it out later.” Media coverage suggests that the City implements this policy through an informal quota system: Several employees of the Department of Public Works have revealed that supervisors expect enforcement personnel to issue certain numbers of tickets per shift for specified areas, and that supervisors punish those who fail to meet quotas by handing out undesirable shift hours. In other words, enforcement personnel are under the gun; unless they want to work at 3:00 in the morning, they have to issue bushels of tickets. Because this system appears to give credit even for unjustified citations, there is little incentive for personnel to make sure that they issue citations only when deserved. So the high error rate is no surprise. The effect is to impose upon thousands of law-abiding residents the burden of either paying a fine or establishing the absence of a violation. For many, the hassle is worse than the dollar value of the fine.
This policy is not only burdensome; it may be unconstitutional. Settled legal doctrine holds that the government violates the 14th Amendment’s Equal Protection Clause if it intentionally and without rational basis treats an individual differently from others who are similarly situated. This doctrine reflects the purpose of the Clause, which is “to secure every person within [a] State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.”
There is a good argument that the City of Milwaukee is violating the Equal Protection Clause. Acting through its parking enforcement personnel, the City treats its residents differently by issuing parking tickets to some but not others. To the extent that the tickets are warranted, the differential treatment is itself warranted. But put aside all residents who violate parking laws and thus deserve citations. Even without them, there is differential treatment among a group of similarly situated individuals who are perfectly compliant with all parking laws: the high error rates show that the City issues tickets to some and not others. Moreover, the difference in treatment has no rational basis—within the population of compliant residents, there is no material characteristic that distinguishes the ticket-free and ticket-receiving individuals. If enforcement personnel issue a ticket simply to satisfy a quota, it is not because of anything the recipient did; it is because her car just happened to be there. And while revenue collection is undoubtedly a legitimate governmental interest, the Constitution does not permit the pursuit of legitimate interests through illegal means. Imposing fines on law-abiding residents is contrary to the Traffic Code, which authorizes fines only against residents who violate its provisions.
It is hard to say at this point whether the differential treatment is intentional. In part, this is because the law is unclear on the type of intent that gives rise to a constitutional violation. It is not clear, for example, whether a violation requires that enforcement personnel simply intended to issue the tickets, perhaps in reckless disregard for whether they were deserved; or intended to issue the tickets while knowing that they were undeserved; or instead intended to issue the tickets because of some non-material characteristic of the recipient. The Seventh Circuit has not provided much guidance. In part, it is also difficult to say whether the differential treatment is intentional because a lot of facts remain unknown. We don’t know, for example, precisely how supervisors train and instruct enforcement personnel, or how frequently personnel issue tickets while knowing they are undeserved. Perhaps the most that can be said at this point is that, given the large number of cancelled tickets, one should not be surprised if enforcement personnel have at least on occasion intentionally issued tickets to law-abiding residents simply to satisfy the informal quotas.
If the Equal Protection Clause seems to be an implausible basis for concern, consider this: Just six months ago, the Seventh Circuit validated a virtually identical argument in a lawsuit against the City of Chicago. After receiving a series of baseless parking tickets, a Chicago resident sued the City on the ground that the issuance of the tickets against him and not other residents violated the Equal Protection Clause. The district court dismissed the claim, but the Seventh Circuit reversed. Explaining that a claim “can be brought based on allegations of the irrational . . . application of law enforcement powers,” the court concluded that the issuance of the tickets was “not a legitimate exercise of discretion” and lacked a rational and proper purpose. A settlement conference is scheduled for September.
It is time for Milwaukee to reform its approach to parking enforcement. The City has an interest in honoring the 14th Amendment. It has an interest in protecting its law-abiding residents against arbitrary and unjustified enforcement measures. And it has an interest in avoiding the costs of litigation that the status quo might produce.
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