Don’t Chalk My Tires, Or Why Mediation is Not Appropriate

PGP Mediation Blog by Phyllis G. Pollack

In May 2019, I posted a blog discussing the creativity of lawyers and “out of the box” thinking. On behalf of their client Alison Patricia Taylor, the lawyers sued the City of Saginaw, Michigan under 42 USC § 1983 (violation of civil rights) by chalking her tires in violation of her Fourth Amendment rights against unreasonable searches. (She had received about 15 parking tickets over three years!) The individual parking enforcement officer- Tabitha Hoskins was also sued. At that time, the trial court granted the defendants’ motion to dismiss agreeing that chalking tires was not a “search” within the meaning of the Fourth Amendment. The Sixth Circuit reversed and remanded.

Well, the Sixth Circuit had a second opportunity to weigh in on whether the chalking of tires by a parking enforcement officer constituted an unreasonable “search”. It seems that on remand, the defendants moved for summary judgment urging that the chalking was an “administrative search” and thus fell outside the constraints imposed by the Fourth Amendment. The trial court agreed and granted summary judgment.

Once again, the Sixth Circuit disagreed. In its opinion issued on August 25, 2021, in Taylor vs City of Saginaw, Michigan; Tabitha Hoskins (Case Nos. 20-1538/1588), the appellate court rejected the notion that an administrative search exception applied:

…we hold that the administrative-search exception does not justify the City’s suspicionless chalking of car tires to enforce its parking regulations. We express no opinion on the remaining exceptions to the warrant requirement because we are “a court of review, not first view.” (Id. at 7.)

However, the appellate court took it upon itself to resolve whether the individual defendant – Ms. Hoskins- who chalked the tires would be entitled to qualified immunity. This issue was raised below but not resolved by the trial court. Because such an invocation should be resolved as early as possible in the litigation to not lose its effectiveness, (Id. at 7) the appellate court addressed the issue on its own accord. It decided that Ms. Hoskins is entitled to qualified immunity and so affirmed the summary judgment in her favor.

But it refused to say whether the City of Saginaw would also be entitled to qualified immunity under U.S. Supreme Court precedent. (Id. at 7, fn. 4) (Is this a harbinger of a third appeal?)

In conclusion, the Sixth Circuit affirmed the grant of summary judgment in favor of Ms. Hoskins but reversed it with respect to the City and remanded the matter back to the U.S. District Court for further proceedings consistent with this opinion.

So, what does this have to do with mediation? It exemplifies one of those very few circumstances in which mediation may not be appropriate because a public policy is at stake. While initially, one may think this is simply a “silly” suit over parking tickets between Ms. Taylor and the City of Saginaw, it actually involves all of us who have gotten parking tickets by virtue of our tires being chalked. The issue is one of public concern implicating social values and our constitutional rights.

I do not know if the U.S. District Court for the Eastern District of Michigan at Bay City has a mandatory ADR program that includes court-ordered mediation. If it does and this matter was ordered to mediation, I can easily see why it did not settle: larger societal issues were at stake. Sometimes, it is not about the money: it is the principle of the thing!

… Just something to think about.

                        author

Phyllis Pollack

Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as… MORE >

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