April 2003

The Tar Pit: Anatomy of a Parking Ticket (with Deep Appreciation for the Works of Franz Kafka)

by James Goche

No one likes parking tickets. The little yellow envelopes have long been an accepted hazard of parking in town, and Washington cities issue them by the hundreds of thousands every year. As regulatory penalties, they have been compared to mosquitoes. They multiply quickly and seem to be everywhere, but their individual bites, the small fines which have traditionally cost only a couple of bucks, create more irritation than damage. In recent years, however, this has changed because the mosquito's bite has grown quite large.

Ticket costs have skyrocketed with the addition of surcharges and fees, and cities' increasing use of private collection agencies to collect these penalties is creating even greater costs through the long-term damage done to people's credit ratings. As a result, a couple of parking tickets can now cost you your vehicle and create problems if you are trying to buy or rent a house, get a job, purchase insurance, take out a loan, or get medical attention for your family. The total cost of a handful of parking tickets may now exceed the financial penalties set for some felonies.

To make matters worse, people are being convicted of infractions which they did not commit. The law in Washington allows cities to assume initially that the registered owner is the operator of the ticketed vehicle for purposes of issuing the parking citation, but requires cities to eventually prove their case. Courts have said that only the driver can be guilty and that "strict liability" for the owner is not permitted. Nevertheless, cities commonly assume that the owner is guilty unless the citation is appealed, and then often make it impossible to rebut these presumptions.

The appeal period for parking citations is short (around two weeks) and after the period has expired, the defendant loses his right to challenge the ticket. If the owner wasn't driving the car, he probably won't know about the citations and so cannot not appeal them. This means that after 15 days, innocent owners will be deemed guilty of the infractions, face escalating fines, and find themselves stuck in a legal system which demands full payment of all penalties as the only way out. They may learn about their predicament only when they begin receiving harassing calls from a collection agency.

Given all this, a more apt metaphor for a city's parking-enforcement system might be that of a "tar pit" which entraps unassuming animals coming to a watering hole to drink. Once caught, there is no way out of the sticky and unmerciful morass, which swallows its victims faster the more they struggle.

Sound farfetched? Perhaps overly dramatic? I would have thought so, too, until I found myself stuck in the tar.  

Discovery

One evening around suppertime, I received a phone call from a friendly sort who seemed to know me. When I asked what the call was about, the conversation became threatening, and the caller told me that I owed over a thousand dollars in claims which I must pay immediately or face legal action.

I eventually discovered that the call was from a collection agency hired by the city to collect parking fines. The agency had added a variety of surcharges, fees and interest to the fines, and now wanted payment for everything — right away! However, I had not committed the parking infractions. I had received no notice about any overdue tickets from the city, and knew nothing of the matter.

The collection agency was vague about the details, except that it wanted money. I wrote to the agency, asking it to stop its action while I contacted the city to obtain a clear picture of the claims and sort out the situation. Under federal law, my written notice would normally be effective in consumer transactions to advise the agency that the debt was contested, and suspend a collection action for a time. But, as I was to find later, the law does not cover "city debt."

As I began investigating, I discovered the origin of the problem. Someone who had the loan of my auto had received some parking tickets and didn't mention the ones she had forgotten to pay. I contacted the city, but immediately ran into a tangle of bureaucracy. First, the city's record-keeping was so poor that it had a difficult time providing consistent answers to simple questions like, "How many citations were issued?" or "How many dollars were owing?" It couldn't even show me copies of its own parking citations.

Secondly, the city claimed that it had sent me the notices, but had a difficult time showing proof when I requested it. I also discovered that the city kept its mailing costs down by using first-class rather than certified mail for its notices. When pressed, officials had to admit that they had no idea if the alleged notices were actually delivered.

Finally, "ownership" of the situation was a problem. Both the city and collection agency wanted money, but no one was in charge. When I made inquiries about the citations to one, I was referred to the other and then back again in a game of "parking ticket ping-pong."

In the meantime, the driver came forward and, to her credit, admitted responsibility for the tickets. She sent the city full payment of its fines and surcharges.

At that point, the city had an innocent defendant who committed no wrongs and should have owed no fines, meaning that the city "debt" now sitting in collection was void and uncollectable. The city also had a confession on file by the vehicle operator, and easy money in its pocket with the voluntary payment she had made. To top it off, the city was saving money by not having to spend taxpayer dollars to refile and prosecute the tickets. The case should have been heading for a prompt resolution, right? Well actually, no.

The city said that its collection agency would not return its tickets. The city believed it no longer "owned" its parking citations once it sent them to a private collection agency, and so was no longer responsible for their defects. There was nothing the city could do but "let the system run its course."

On the other hand, the collection agency maintained that its client's claims were rock solid. The client was no mere business or professional organization, but was a local government assessing regulatory fines with the full force of state authority behind it. The law gave deference to such essential governmental functions as traffic regulation, and, unlike debts created through consumer transactions, the law presumed that fines issued under the color of state action were valid. Therefore, the city's "debt" must be good. The collection agency felt there was nothing it could do but "let the system run it course."

Despair

It seemed like I was sunk. The appeal period had expired 15 days after the tickets were issued, and "the system" now presumed I was guilty. It didn't seem to matter that I was innocent or that the city had failed to tell me about the tickets or give me my day in court.

Then I looked into the consequences of paying off the collection agency and discovered that doing so would be disastrous to my family, my personal finances, and my business. When a collection action is listed on a person's credit record, the credit bureau creates a "credit profile" which is increasingly used by employers, landlords, lenders, insurers and medical providers to determine whether they will do business with the person profiled. A minor blemish on one's credit record can mean that any or all of these essentials will cost more or become entirely unavailable. The blemish remains on the person's credit history for up to seven years after it is paid. 

Soon after, I experienced some of the colossal damage an agency can do to one's credit when I attempted to take out a business loan. My lending institution informed me that despite an otherwise superior credit rating, the city's collection action for its parking tickets had taken me from a class-A to a class-C borrower. I could still get a loan, but the price would be higher.

The lender also advised me that even if I paid the collection agency, the record of its listing (i.e., that I was a "deadbeat") would continue to affect my credit rating for another seven years.

Instead of paying, I decided to fight; I hired a lawyer. Little did I know that this was the beginning of a three-year legal battle and an expensive education in parking-enforcement procedures. "The system," I discovered, wasn't used to being challenged, and was willing to make things very difficult when it felt insecure.

Fighting the System, Part 1

I quickly discovered that the city has lots of ways to persuade a person to pay a parking ticket. In addition to the collection action, it made sure that I could not use my vehicle until the cases were resolved. Without telling me, the city had contacted the state Department of Licensing (DOL) and suspended my ability to renew my registration. If I drove an unlicensed vehicle, I could be cited for a criminal violation and the auto could be impounded. On the other hand, my family needed the vehicle, a minivan, to get our kids to school, to the doctor, and wherever else necessary. I contacted the DOL to explain that I was innocent and ask it to renew my registration. Department staff advised me that there was no appeal and that I should contact the city. After considering my options, I sold my vehicle at a loss and scraped together enough money to replace it.

Next, I found that the collection agency had also been busy. It had ignored my letter and, while I was talking with the city in an attempt to resolve the matter, the agency had taken me to court. It used the city's municipal court to turn the citations into judgments, and then transferred them to the county district court to begin a collection action. I was now guilty of parking tickets in two court jurisdictions, but had received notice of neither. Had this been a consumer-debt situation, federal law would have required the collection agency to stop running up its bill while I attempted to settle the claim, and would have required it to give notice of its actions. Unfortunately, "city debt" falls through a loophole in the law, so the collection agency decided that it could pursue legal actions in two separate courts unilaterally and without notice.

When my attorney discovered what the collection agency had done, "ownership" of the cases again became a problem, but this time between the courts. I attempted to file a challenge to the citations in the city's municipal court, but the judge indicated that he would not hear it because the matter was now under county district court jurisdiction. My attorney filed an appeal with the county, but after a hearing on the matter, the district court judge said that she could not overturn a municipal court judgment and that my appeal should have been filed with the city. We returned to the municipal court and filed an identical appeal there, only to have the city judge repeat his refusal to hear it. We asked the two judges to discuss the matter over a cup of coffee, and eventually the municipal court grudgingly accepted the appeal. By then nearly a year had passed and attorney fees were mounting.

The municipal court postponed and rescheduled the matter for months, but eventually heard the appeal. Notice and record-keeping difficulties again arose as a problem. The city and its collection agency were still at odds over how many tickets were involved and the amount owing. The collection agency was also unable to provide copies of the notices it claimed to have sent. Neither seemed to care that the defendant was innocent, but both claimed that "all necessary procedures had been followed" as the collection agency vigorously asserted its claims within "the system."

Eventually the judge took the matter under advisement.

During the next six months, the city continued to fumble over its poor record-keeping practices. At one point I received back-to-back letters from the city parking-enforcement supervisor and her boss, the transportation division manager, each claiming to have researched my case thoroughly so they could clarify the record regarding the tickets issued and the fines owing. Each came up with different answers.

Pressure to settle also grew. I received a letter from the city manager telling me the judge wanted to settle the case and advising me to pay up. The city manager apparently wanted the city's municipal court to be aware of this as well, since the letter indicated that the city manager had sent a copy to the presiding judge. This seemed curious, because city administrators don't usually speak for local judges regarding litigation matters, and parties to a lawsuit usually don't speak to judges about a case outside the courtroom. I chose not to settle, and continued to press for a decision in the matter.

Finally, nearly two years into the process, the municipal court dismissed the collection agency's judgments and confirmed what the city knew two years before — that I was innocent of the charges.

I had won! Well, sort of. The judge did not dismiss the underlying citations but, rather, indicated that I could request a contested hearing on them. The parking-enforcement office confirmed that the city attorney's office said a hearing was necessary. A hearing about what though, I wondered? The judge had specifically stated in his decision that I did not commit the parking infractions. If I am innocent, what more did I have to prove?

Fighting the System, Part 2

I contacted the city to protest and ask that it cancel the parking tickets. The city said it would not. It was still expecting me to pay the fines. I asked if the clock was running on the appeal period, considering that this whole mess started with the expiration of deadlines. Oh yes! Since the court's dismissal of the judgments, the city had started the prosecution process again from the beginning. I apparently had 15 days to appeal or the city would again presume that I was guilty. After all, the system must be allowed to "run its course."

So I formally "contested" the parking tickets, and the city scheduled a hearing before the same municipal court that had just dismissed the case, challenging parking infractions which the same judge had conclusively determined that I didn't commit, contesting issues which the city couldn't identify. The court set a hearing date for three months later. I filed a motion to dismiss, which the court ignored. I requested information from the city attorney as "discovery" and also as a public-information request, but was unable to get even the names of the officers who had written the tickets. Time passed and expenses continue to mount.

The city allowed its system to "run its course" until the day before our court date. Just hours before the hearing, the city attorney dismissed all charges against me, again without prior notice of his motion.

I had won! Well, sort of. I was happy that the case was over and that it could come off my credit record, but I had paid a high price, and the city seemed to do everything in its power to make the victory as expensive as possible. During the nearly two-and-a-half years it took to resolve these cases, I had accumulated approximately $6,000 in legal costs and other expenses, I had sold my vehicle, and my credit rating was damaged.

Fighting the System, Part 3

As for the city, it was unrepentant and continued to "work its system." After two years of prosecuting me, the city then went after the driver — the one who had admitted responsibility and sent the city a check long ago. The city seemed to believe that it could continue filing parking citations against people until it found someone to pay them. Nor was its righteousness diminished by the fact that it had chosen to disregard evidence and pursue the wrong defendant for years.

As for the driver's earlier payment, the city had refused to accept her check but had not returned it to her. It remained outstanding during the years in which the city pursued me for payment. Recently, the city gave the driver 15 days to appeal the citations or pay them — again. Otherwise it would begin doubling the fines and could eventually send them to collection. The driver appealed, believing that the tickets were now too old and the city's actions were unjust.

In response, the city asserted that time limitations were only for defendants. It had stretched this case out for years, but turned around and claimed that it was not bound by statutes of limitation or speedy-trial rules. The city admitted that the case was so old that the citing officers had left its employment and were unavailable to testify. The city's only evidence was the driver's admission of responsibility, the one which it had discounted two years ago to prosecute its cases against me, which it now said should support her conviction. The judge readily agreed and, despite the driver's prior payment, he assessed fines against her. The judge, however, buffered his judgment somewhat and, taking some note of the extraordinary circumstances of the case, reduced the fines to $3 per ticket.

Of the many things which might be said about the city's actions to this point, one observation seems particularly poignant. It created extraordinary damage for all involved and achieved nothing. It turned down a guaranteed payment of hundreds of dollars, spent unknown amounts of public funds to prosecute an innocent defendant for years, and then wound up with an award of only a few cents on the dollar. "The system" had been allowed to work, but everyone lost, including the taxpayers.

The System and the Need for Reform

I believe this case underscores the need for reform of "the system." Most Washington cities have enforcement and collection practices which are similar to the ones described in this tale and, according to state statistics, issue nearly a million parking tickets every year. That's a lot of people falling into the parking enforcement "tar pit." Cities also turn several hundred thousand of these over to collection annually.

In a sense, I was lucky because I had the resources to successfully fight city hall and avoid greater damage to my credit rating. Considering the cost and uncertainty of mounting a challenge, however, this option is unavailable to most people no matter how unfair city actions are. I hope our Legislature will take an interest in the problem and re-establish basic public protections in the laws governing parking infractions.

Parking tickets touch many people's lives. As a specific example, the city in this story, a modest-sized community of only 42,500, admits to issuing 31,761 parking citations in 2001 and sending 5,435 cases to collection. That's a lot of ruined credit ratings and a big impact on our local economy. Some defendants are single parents and low-income families who are struggling to maintain a home, keep a job, and get the kids to the doctor when they are sick. They may not know about the parking tickets until they are in collection, and the damage to their credit rating may push them into a financial hole they will never get out of.

Finally, this case demonstrates that parking tickets are no longer minor charges. The mosquito's bite is now quite large, and the damage it does can be substantial and long-lasting. These days, parking-infraction costs climb rapidly and create unnecessary damage to individuals, families and businesses. Legal safeguards for the public must be improved and should increase at least at the same rate as the penalties.

Many state and local organizations and media have protested the city's lack of notice and hearing protections for the public. They have demanded reform of parking-enforcement and debt-collection practices. Recently, the American Civil Liberties Union and the Washington State Bar Association Civil Rights Committee have written the city, expressing concern that its due-process protections appear to be lacking and its practices may be illegal.

But reform appears to be an uphill road with local policymakers, because cities increasingly rely on regulatory fines to replace sinking tax revenues. Unlike taxes, which require the consent of the people, cities can generate revenue quickly and unilaterally through fines and penalties. Unfortunately, to do this they must accuse people of wrongdoing, and cities seem to be doing so in increasing numbers. And from the standpoint of generating money for city treasuries, making "the system" fairer would also make it less profitable.

 Fighting the System, Part 4

As for myself, I have discovered that old parking tickets don't die easily. Six months have passed since the city dismissed its citations, and my family finances are recovering. Unlike other "civil" cases, parking-enforcement laws do not allow defendants to recoup their attorney fees, no matter how outrageously a city may act. The city avoided accountability for its mistakes and did not pay for the damage it created for me and my family. The city, however, is nothing if not persistent.

I recently received a notice advising that I had an overdue parking ticket which would be sent to collection if not paid. This was something of an accomplishment for the city, because, after two and a half years of claiming that it had sent precollection notices, it actually managed to get one to me. A closer inspection of the notice shows the continuing sloppiness of city notice and record-keeping practices, and suggests several reasons why it fails to notify the defendants it charges.

First, the face of the notice indicates it was printed nearly two weeks before it was put it in the mail. I received it just in time for a 15-day appeal period to have expired.

Secondly, the envelope was improperly posted, and the postmark was incorrectly dated for a year earlier. The local post office advises that this is a violation of federal law, and can delay or obstruct delivery of the mail. Nor is it likely that my situation is unique. It appears that the city has sent over a thousand of these illegally mailed precollection notices in the last couple of months, and because it mails its notices on the cheap (without a return receipt), the city now cannot determine how many of them were actually delivered. It does not appear possible to claim that all these notices were "legally mailed," and the city must decide whether it will 1) resend the notices and pull back the cases it has already sent off to collection; or 2) ignore its mistakes and push on with its prosecutions.

Finally, the notice was for one of the original tickets that started this whole mess back in the prior millennium (1999). The claim was now almost three years old, had been twice tried, twice dismissed, and was, by any stretch of the imagination, conclusively dead. Nevertheless, here it was again.

I have written to the city attorney and council to protest and ask that the notice be withdrawn. I have again explained that I am innocent of the charges. On top of that fact, the city's own municipal court judge issued an order determining that I didn't commit the infraction, and the city attorney dismissed the citation.

As city officials have patiently explained to me many times over the last three years — the system must be allowed to run its course. 

James Goche is a small-business owner, and former practicing attorney and deputy prosecutor. He lives in Olympia.