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United States District Court, Northern District of Illinois, E.D

November 15, 1982


The opinion of the court was delivered by: Shadur, District Judge.


Three individual Illinois land trust beneficiaries*fn1 and the bank trustee of that trust bring a 42 U.S.C. § 1983 ("Section 1983") action against the Village of Minooka ("Minooka") and its Village Trustees ("Trustees") in their official and individual capacities. Plaintiffs claim defendants diminished the value of the land trust property (the "Property") without due process of law, by refusing to reserve two liquor licenses for the Property as required by an agreement between Minooka and plaintiffs' predecessors in ownership. Defendants have moved for summary judgment*fn2 and for dismissal of Trustee Keith Steffes. For the reasons stated in this memorandum opinion and order, this Court sua sponte dismisses this action for failure to state a Section 1983 cause of action.


On July 15, 1974 Minooka and Donald Jennings ("Jennings") entered into a Pre-Annexation Agreement (the "Agreement"), pursuant to which the Property was annexed to Minooka. Paragraph 4 of the Agreement*fn4 provides:

  The Owner and the Village of Minooka agree that
  the Village will reserve or pass all necessary
  ordinances or resolutions to allow the issuance
  of 2 liquor licenses for use on said annexed land
  when and if the Owner requests the issuance of
  said licenses for a use listed in Exhibit "A",
  provided that one such license shall be for use
  in a cocktail lounge connected with a restaurant.
  The other license shall be for a package liquor

Paragraph 8 states:

  This agreement shall be binding upon the Owner,
  his heirs, executors and assigns and the Village
  of Minooka for 10 years as provided by Illinois
  Revised Statutes.

Plaintiffs later purchased the Property from Jennings, relying on the provisions of the Agreement.

On November 17, 1975 Minooka enacted an ordinance that effectively prohibited the issuance (to anyone) of either type of liquor license referred to in Paragraph 4.*fn5 Plaintiffs have repeatedly asked Minooka to pass a resolution implementing Paragraph 4. At the August 10, 1981 Village Board meeting:

  The motion was made to have our attorney draw up
  a resolution to coincide with the Donald Jennings
  Pre-Annexation Agreement regarding Paragraph 4
  granting the owners the issuance of a liquor
  license. This resolution would be good until 1984
  when the pre-annexation agreement would run its
  10 year term.*fn6

That motion was defeated.

Minooka's refusal to reserve any liquor licenses for the Property has, plaintiffs claim, appreciably reduced its value. Convinced that Minooka had repudiated the Agreement, plaintiffs brought this action.

Plaintiffs' Flawed Section 1983 Claim

Minooka advances several theories for summary judgment:

    1. Paragraphs 4 and 8, read together, are
  unenforceable because a municipality such as
  Minooka cannot bind itself to grant a liquor
  license for more than one year.

    2. Plaintiffs failed to satisfy two conditions
  precedent to Minooka's performance of its
  obligations under Paragraph 4:

      (a) They have not requested issuance of the
    liquor licenses.

      (b) They have not constructed the cocktail
    lounge and package liquor store contemplated by
    Paragraph 4.

    3. Paragraph 4 did not require
  immediate reservation of the two liquor licenses,
  so that Minooka did not dishonor the Agreement by
  enacting the November 17, 1975 ordinance and
  rejecting the August 10, 1981 motion.

All three contentions make plain that this action, though framed in Section 1983 terms, is at bottom a suit for breach of contract. Indeed that is the obvious thrust of the Complaint from even the most casual reading.

Yet neither party has seen fit to address the most obvious problem in the case: whether a claim for the deprivation of property without due process of law may be grounded in a municipality's (or state's or other state governmental entity's) simple refusal to perform a contract. If it could, the federal courts would become the dumping ground for an enormous volume of litigation that intuition tells us cannot have been within the intended scope of the Civil Rights Act.

What both parties have missed in that regard is the entire conceptual and structural underpinning of Section 1983. It requires both state action and the violation of a federal right. In the latter respect plaintiffs can and do point only to the Due Process Clause of the Fourteenth Amendment.

But it is no accident that the constitutional provision is labeled the Due Process Clause. Its focus is not on the deprivation of property alone, but only such deprivation "without due process of law." Surely it was never intended to create, via Section 1983, a font of contract law governing ordinary contractual breaches by the state. Cf. Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976) (expressing just those sentiments in the tort context).

For present purposes the teachings of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) in the tort law field are equally compelling here. Just as the availability of a post-deprivation state tort remedy satisfied the dictates of procedural due process in Parratt, so plaintiffs' right to sue for breach of contract in the state court system comports with the Fourteenth Amendment here.

Indeed that conclusion seems to follow a fortiori from the Supreme Court decisions in the tort area. There is nothing this Court can do for plaintiffs that is not probably better available in the state court system*fn7 — save perhaps for the availability of attorneys' fees, and perhaps punitive damages, under Section 1983 but not in a state contract action. And such differences in possible remedy do not support the enormous extension of Section 1983 exemplified by plaintiffs' garden variety breach of contract action.*fn8

In short, plaintiffs' Complaint asserts a property deprivation without alleging any lack of due process. And as Parratt emphasized, that assertion alone does not implicate the Due Process Clause (451 U.S. at 537, 101 S.Ct. at 1913):

  Nothing in that Amendment protects against all
  deprivations of life, liberty, or property by the
  State. The Fourteenth Amendment protects only
  against deprivations "without due process of


Plaintiffs' Complaint is dismissed for failure to state a claim under Section 1983. This dismissal is of course without prejudice to their bringing the same claim where it should have been brought in the first place — in the Illinois state courts.

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