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MUSTFOV v. SUPERINTENDENT OF CHICAGO POLICE DEPT.

February 20, 1990

JUSEIN MUSTFOV, RAY MOHYDE, HENRY SAMMARCO, DENNIS BECKER, MIODRAG STOJADINOVICH, DRAGAN PETROVIC, RANDALL SCHLICTER, JOHN A. LINDSEY, JIM GUTHRIE, LAWRENCE FROWICK, FRANK BARBERIS, NEB TARAILO, WILFRED BRODEUR, DONALD GARDELLA, JOHN MILLER, IVAN NIKOLOV, RONALD COURTNEY, ACE LIMOUSINE, INC., DENNIS BECKER, WILLIAM PASCENTE, JEANETTE OLIVO, SANTOS GONZALES, DONALD F. PIENCAK, ANTHONY PALERMO, DENNIS COOPER, CHRISTOPHER FROWICK, ADVENTURE LIMOUSINE, INC. and ALL SUBURBAN LIMOUSINE SERVICES, INC., Plaintiffs,
v.
SUPERINTENDENT OF CHICAGO POLICE DEPARTMENT; COMMANDER OF POLICE FOR O'HARE INTERNATIONAL AIRPORT; VEHICLE COMMISSIONER CONSUMER SERVICE DEPARTMENT; DEPUTY COMMISSIONERS; CHICAGO CORPORATION COUNSEL; THE CITY OF CHICAGO; PAUL JANKOWSKI, individually; and DAN WELTER, individually, Defendants



The opinion of the court was delivered by: ASPEN

 MARVIN E. ASPEN, UNITED STATES DISTRICT JUDGE

 This twelve-count action was brought under 42 U.S.C. § 1983 ("Section 1983") by a group of individual livery and taxicab operators and three corporate livery services against the City of Chicago, and against the Superintendent of the Chicago Police Department and the Commander of Police for the 16th Police District in their official capacities. (Defendants collectively referred to as "City"). The plaintiffs challenge various ordinances and alleged City practices regulating or affecting livery operations in Chicago and particularly at Chicago's airports. The parties have filed cross-motions for summary judgment as to all matters not previously dismissed or settled. *fn1"

 I. Summary of the Plaintiffs Remaining Claims

 The plaintiffs state five classes of claims in their complaint. First, they raise facial constitutional challenges to the City's Anti-Solicitation and Inter-Urban Operation Ordinances, found in Chapter 28 of the Chicago Municipal Code, "Public Passenger Vehicles." Various plaintiffs seek damages and declaratory relief on the claim that the ordinances violate the Due Process Clause because they are unconstitutionally vague (Counts II and III). *fn2" Various plaintiffs seek damages and all of the plaintiffs seek declaratory relief on the claim that prohibiting solicitation of passengers for livery trips, and not for certain other modes of transportation, violates the Equal Protection Clause (Count IV). *fn3" Some plaintiffs seek damages and all of the plaintiffs seek declaratory relief on the claim that preventing unlicensed vehicles from travelling between O'Hare and the rest of Chicago violates the Interstate Commerce Clause (Count IX). *fn4"

 Second, certain plaintiffs seek damages and all of the plaintiffs seek declaratory and injunctive relief on the claim that the City's restrictions on the number of livery vehicles it licenses, and its distribution of those licenses, violates the Equal Protection and Due Process Clauses (Count VI). *fn5"

 Third, all of the plaintiffs seek damages and declaratory and injunctive relief on the claim that the City removed the name, address, and telephone number of one of the livery companies in violation of the Due Process Clause (Count XII).

 Fourth, certain plaintiffs seek damages and all of the plaintiffs seek declaratory relief on a claim attacking the validity of the City's annexation of land encompassing O'Hare ("O'Hare Area"). *fn6" They contend that if the O'Hare Area was not validly annexed, then the City regulation and policing of ground transportation there violates the Due Process Clause (Count VIII).

 Fifth, various plaintiffs raise claims challenging the City's enforcement of the ordinances. They seek damages and declaratory and injunctive relief, claiming that

 
(1) their arrest for violating the ordinances and the incident processing violate the Fourth Amendment and Due Process Clause, both because the City cannot lawfully arrest violators of the ordinances and because their post-arrest processing, in several instances, was too slow (Count X); *fn7"
 
(2) they are arrested for violating the ordinances without probable cause or in an arbitrary and capricious manner in violation of the Due Process Clause (Count I); *fn8"
 
(3) the City enforces the ordinances differently at O'Hare and Midway Airport ("Midway") in violation of the Equal Protection Clause (Count V); *fn9"
 
(4) City officials conspired to detain various plaintiffs needlessly for long periods of time for processing in violation of the Due Process Clause (Count VII); *fn10"

 In addition to challenging the substantive merits of each of these claims, the City raises several preliminary matters for our consideration. The City has moved to strike certain exhibits submitted by the plaintiffs in connection with their motion for summary judgment, and also points to the plaintiffs' failure to submit 12(l) and 12(m) statements. The City also contends that many of the plaintiffs' claims are barred by res judicata. We will first address these preliminary matters, and then separately address each of the plaintiff's claims and the additional facts and arguments relating to each claim.

 II. Motion to Strike and Compliance with Local Rules

 In responding to a motion for summary judgment, the plaintiffs must submit competent and proper evidence. Testimony must be based on personal knowledge and must set forth the facts in a manner that would be admissible in evidence. Fed.R.Civ.P. 56(e); Davis v. City of Chicago, 841 F.2d 186, 188 (7th Cir. 1988). Documentary evidence likewise must be admissible and authenticated. See, e.g., Wells v. Franzen, 777 F.2d 1258, 1262 (7th Cir. 1985). The City contends that the majority of the plaintiff's documentary and testimonial submissions fail to meet these standards.

 The City has moved to strike portions of Mustfov's deposition testimony, found in Exhibits 5 and 7 ("P. Exs.") to the plaintiffs' motion for summary judgment, on the ground that they are rife with hearsay, speculation, and conclusory matter. The plaintiffs completely miss the mark in responding to these grounds. They fail to address the specific question whether the contested testimony is admissible and instead raise arguments concerning the use, as a general matter, of deposition testimony on a motion for summary judgment. Having reviewed the testimony we agree that P.Ex. 5, at 137:1-6 and 11-19, concerning detention, and P.Ex. 5, at 55:16-21, concerning an arrest of John Miller, contain inadmissible hearsay and speculation and are hereby stricken. That portion of P.Ex. 7, at 113, regarding a supposed bombing and P.Ex. 7, at 59, regarding the post-arrest processing at Midway is based on hearsay and speculation and hereby stricken. We do not strike the testimony in P.Ex. 7 relating to the livery booths and road construction as that testimony appears to be based on personal knowledge and is material to the plaintiffs' claim that the City no longer has a rational basis for only allowing the solicitation of passengers by Continental Limousine at O'Hare.

 The City has further moved to strike certain documentary exhibits, P.Exs. 9-17, on the grounds they each are unauthenticated or otherwise inadmissible. The plaintiffs raise no objection to striking P.Exs. 10 and 12, and accordingly those exhibits are stricken. As to the remaining contested exhibits, here too the plaintiffs miss the mark and fail to address the specific questions of authenticity and admissibility. Regarding P.Exs. 11 and 13-17, the plaintiffs assert that these exhibits "can be authenticated by occurrence witnesses at trial." Authentication at that time, however, comes too late. Exhibits that the plaintiffs wish to use now, at the summary judgment stage, must be authenticated now. Wells, 777 F.2d at 1262 (7th Cir. 1985). Because the plaintiffs have failed to authenticate these exhibits, we find that they should be excluded. Similarly, we also find that P.Ex. 9 should be excluded because a properly authenticated and unaltered copy of the exhibit has already been submitted as City Ex. CC.

 We now turn to the plaintiffs' failure to comply with Local Rule 12. First, the plaintiffs did not file a Rule 12(m) statement in response to the City's Rule 12(1) statement of uncontested facts filed with its motion for summary judgment. Consistent with Rule 12(m), we accordingly will deem the facts set forth in the City's Rule 12(l) statement as admitted. Second, the plaintiffs did not file a Rule 12(l) statement with their motion for summary judgment. Rule 12(l) provides that failure to submit such a statement constitutes grounds for denial of the motion. The parties, however, have filed cross motions for summary judgment and, in conjunction with those motions, have allotted a joint statement of stipulated facts and joint exhibits. Therefore, there exists a record of material facts as to which there is no dispute and accordingly the spirit, if not the form, of Rule 12(l) has been satisfied to the extent that plaintiffs may rely on the stipulated facts in their motion for summary judgment. Further, as to those additional exhibits upon which the plaintiffs now intend to rely in their motion, the plaintiffs did make specific reference to them in the text of their memorandum. While that does not excuse the plaintiffs' technical lack of compliance, and obviously made the job of sorting out the plaintiffs' motion more difficult for both the City and this Court, we observe that it is the plaintiffs who ultimately will have been prejudiced by the confusion engendered by their lack of compliance with the local rule. In any event, the plaintiffs' motion for summary judgment simply reiterates some of the arguments they already raised in response to the City's motion. Thus, we proceed to the merits of the combined motions.

 III. Res Judicata

 Each individual plaintiff has been convicted for violating the Anti-Solicitation and Inter-Urban Operation Ordinances in quasi-criminal proceedings brought by the City in the Circuit Court of Cook County. Most have been arrested scores, and a few, even hundreds of times. No plaintiff has ever appealed his conviction. The City contends that the doctrine of res judicata bars the plaintiffs from raising a Section 1983 challenge to the propriety of their past prosecutions based on both the facial attack on constitutionality of the ordinances (Counts II, III, IV and IX) and on allegations of arrest without probable cause or entrapment (Counts II and VII). *fn11" The City characterizes these claims as impermissible collateral attacks on the Illinois state court convictions.

 A federal court in a Section 1983 action must give the same preclusive effect to a state court ruling as would the rendering state. Donald v. Polk County, 836 F.2d 376 (7th Cir. 1988); 28 U.S.C. § 1738. In Mustfov v. Superintendent of Police, 663 F. Supp. 1255, 1260 (N.D.Ill. 1987) (" Mustfov I "), we determined that, according to 28 U.S.C. § 1738, Illinois law controls the application of res judicata in this case. Under Illinois law, a final judgment on the merits in Illinois is conclusive on all subsequent suits upon the same cause of action and between the same parties, and extends not only to the questions actually litigated and decided, but to all grounds of recovery or defenses that might have been presented in the prior proceeding. Id. Because the earlier state actions in this case were either criminal or quasi-criminal, and not civil actions, we are not concerned with claims that the plaintiffs might have presented, but rather with defenses to their prosecutions that they might have presented. Id. Accordingly, res judicata will apply "when a party seeks to raise a constitutional challenge in a federal civil rights action which could have been, but was not, raised as a defense in prior state proceedings." Pliska v. Stevens Point, 823 F.2d 1168, 1172 (7th Cir. 1987); Button v. Harden, 814 F.2d 382, 384 (7th Cir. 1987). *fn12"

 The City argues that the plaintiffs certainly could have raised their constitutional challenges to the ordinances and the propriety of the prosecutions as a means of defending the actions in the state court proceedings. State court jurisdiction to hear such arguments is well established. See Horn v. City of Chicago, 860 F.2d 700, 702 n. 5 (7th Cir. 1988).

 The first point, regarding the competence of the court to hear the plaintiffs' challenges, pertains to those instances in which the plaintiffs plead not guilty, were tried, and a conviction was obtained based upon a verdict. The plaintiffs dwell on the fact that their cases were tried in traffic court instead of municipal district misdemeanor and ordinance violation courtrooms. However, prosecutions apparently have not been decided by traffic courts since 1984. The parties have stipulated that in March 1984, the City changed its arrest procedures and arranged to have all livery cases tried in municipal misdemeanor and ordinance courts. J. Fact Nos. 3.9, 3.12. Thus, we must consider this challenge in the two different contexts of traffic and misdemeanor courts.

 Regarding the trials that occurred in traffic court, Illinois has a general rule regarding the effect of traffic court convictions upon later civil actions which we must take into account. In Hengels v. Gilski, 127 Ill. App. 3d 894, 469 N.E.2d 708, 83 Ill. Dec. 101 (1st Dist. 1984), the Illinois Appellate Court held that a traffic court conviction following a plea of not guilty does not possess adequate assurances of reliability necessary to justify its admission into evidence at a later civil trial based upon the same facts. *fn13" Noting that this is a special exception to the general rule otherwise allowing evidence of a prior criminal conviction as prima facie evidence of the facts upon which the conviction was based, the court reasoned:

 
A traffic court conviction will often result from expediency, convenience, and compromise; the constitutional safeguards are often perfunctory and the defendant's opportunity and motive to defend vigorously are often lacking. [To find such evidence of a conviction admissible] could conceivably turn a mechanical and summary traffic court hearing into the ...

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