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PHILLIPS TOWING SERV. v. BUSHNELL

August 18, 1989

PHILLIPS TOWING SERVICE, INC., LINCOLN TOWING SERVICE, INC., SECOND CITY TOWING, INC., ROKAITIS INDUSTRIES, INC., RED'S AUTO BODY SHOP, INC., LAKESHORE TOWING, INC., WILLIAM BROWN d/b/a D & E TOWING SERVICE, THE NEW C & L TOWING SERVICE, INC., RENDERED SERVICES, INC., STAR, INC., BLUE KNIGHT TOWING, INC., AL PIECUL d/b/a GEORGE'S TOWING, and SUBURBAN TOWING, INC., Plaintiffs,
v.
MARY B. BUSHNELL, ANDREW C. BARRETT, RUTH K. KRETSCHMER, SUSAN C. STONE, CALVIN K. MANSHIO, RAYMOND G. ROMERO, and PAUL G. FORAN, in their official capacities as Commissioners of the Illinois Commerce Commission, Defendants



The opinion of the court was delivered by: DUFF

 BRIAN BARNETT DUFF, UNITED STATES DISTRICT JUDGE

 A federal judge witnesses incredible things before his bench. He sees the lowly become mighty, and the mighty turn plaintive. Before this court presently are fourteen Northeastern Illinois car towing companies. They are not in the business of rescuing motorists who become stranded on this state's highways. Rather, they are engaged in what those not learned in the law often call piracy: they tow away vehicles which are parked (illegally, of course) on private property, and hold these vehicles until their owners "ransom" them.

 Of course, one engaged in such a business could not hope to escape public notice, to put it mildly. Such notice invariably gives rise to attempts at public regulation. In 1978 Illinois enacted the Commercial Relocation of Trespassing Vehicles Law, 1978 Ill. Laws 1752, codified as amended at Ill.Ann.Stat. ch. 95-1/2 paras. 18a-100 et seq. (Smith-Hurd 1988 Supp.). This law states in part that the Illinois Commerce Commission ("ICC") shall "[s]et reasonable rates" -- the ransom referred to earlier -- "not to exceed $ 45, for the commercial towing or removal of trespassing vehicles from private property." Id. at P 18a-200(6). Additionally, the law provides that the ICC "may exercise any and all powers with respect to establishment and adjustment of fees with respect to commercial vehicle relocators which it may exercise with respect to motor carriers" under id. at P 18c-1501(2)-(4) Id. at P 18a-602(1).

 The plaintiff towers *fn1" have sued the individual members of the ICC in their official capacities in this court. (The court will refer to the defendants collectively as the ICC.) The towers contend that Illinois has treated their constitutional rights as if those rights were mere trespassing vehicles. In Count 1 of their Amended Complaint they allege that the $ 45.00 ceiling on rates set forth in para. 18a-200(6) wrongfully takes their property in violation of the Fifth and Fourteenth Amendments to the Federal Constitution. In Count 2 they assert that, because of the rate ceiling, the ICC cannot fulfill its mandate under para. 18a-200(6) to set "reasonable rates," and thus the ICC has denied the towers their right to due process under the Fourteenth Amendment. In Count 3 they argue that the rate ceiling discriminates against the towers and thereby denies them their right to equal protection of the laws under the Fourteenth Amendment.

 This is not all they allege. In Count 4 they charge that a $ 25.00 fee on each of their contracts with property owners to remove illegally parked vehicles is an unlawful tax, imposed in violation of their rights under the Fourteenth Amendment. *fn2" In Count 5 they assert that the rate ceiling unlawfully burdens interstate commerce in violation of art. I, § 8(3) of the Constitution. Last, in Count 6 they allege that the rate ceiling violates their rights under the Illinois Constitution.

 The ICC has moved to dismiss the towers' Amended Complaint on a variety of grounds. The ICC first contends that this court may not reach Count 6 because of the Eleventh Amendment to the Constitution. The ICC's argument rests on the holding of the Supreme Court in Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 106, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984), where the Court determined that the Eleventh Amendment barred the federal courts from enjoining actions of state officials solely on the basis of a violation of state law. While the Court seemed to suggest that its ruling was limited to instances where the injunction would have had "an impact directly on the state itself," id. at 117 -- language which evokes the distinction between retrospective and prospective injunctions set forth in Edelman v. Jordan, 415 U.S. 651, 666-67, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974) -- the Seventh Circuit has insisted that Pennhurst bars all claims for an injunction against a state based solely on a violation of state law. See Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1036 (7th Cir. 1987) (violation of state law not ground for injunction against the state unless violation itself contravenes Constitution); Wisconsin Hosp. Ass'n v. Reivitz, 820 F.2d 863, 868 (7th Cir. 1997) (Pennhurst bars attempts of federal courts "to coerce state officials to obey state law"); Bennett v. Tucker, 827 F.2d 63, 71 n.3 (7th Cir. 1987) (same); Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461, 469 (7th Cir. 1988) (no federal jurisdiction to issue writ of mandamus to state official ordering him to comply with state law); Bethune Plaza, Inc. v. Lumpkin, 863 F.2d 525, 527 (7th Cir. 1988) ("a district court may not use its views of state law as the basis for relief against the state itself"). This court thus dismisses Count 6 for lack of subject-matter jurisdiction.

 The ICC's other objections to the Amended Complaint require greater discussion than that addressed above. The ICC first contends that this court has no jurisdiction over the towers' claims by virtue of the Johnson Act, 28 U.S.C. § 1342 (1982). The Act as amended provides:

 
The district courts shall not enjoin, suspend or restrain the operation of, or compliance with, any order affecting rates chargeable by a public utility and made by a State administrative agency or a rate-making body of a State political subdivision, where:
 
(1) Jurisdiction is based solely on diversity of citizenship or repugnance of the order to the Federal Constitution; and,
 
(2) The order does not interfere with interstate commerce; and,
 
(3) The order has been made after reasonable notice and hearing; and,
 
(4) A plain, speedy and efficient remedy may be had in the courts of such State.

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