The opinion of the court was delivered by: MILTON I. SHADUR
This Court's December 8, 1993 memorandum opinion and order (the "Opinion," a copy of which is attached) addressed the motions that had been filed by City of Northlake ("Northlake") and its Mayor Reid Paxson ("Paxson") and its Police Chief Seymour Sapoznik ("Sapoznik") to attack the Complaint brought against the three of them by O'Hare Truck Service, Inc. ("O'Hare") and its owner John Gratzianna ("Gratzianna"). For the reasons stated in the Opinion--focused in principal part on our Court of Appeals' decision in Downtown Auto Parks, Inc. v. City of Milwaukee, 938 F.2d 705 (7th Cir. 1991)--O'Hare and Gratzianna were ordered to file either (Opinion at 3-4):
1. a memorandum identifying any relevant authority (presumably post-Downtown Auto Parks) that preserves either or both of the claims set out in the Complaint or
2. an Amended Complaint stating a differently framed claim or claims--claims capable of being advanced under Section 1983 in the objective and subjective good faith demanded by Rule 11--that is or are viable in light of Downtown Auto Parks.
In response O'Hare and Gratzianna have tendered both a proposed First Amended Complaint ("FAC") and a supporting Memorandum of Law, and they are granted leave to file both of those documents.
As the O'Hare-Gratzianna motion for leave to file those papers says, the FAC "does not change the substance of plaintiffs' claims, but rather adds additional detail." That statement must be read as their acknowledgement that if the FAC's amplification does not do the job either, the "existing flaws are both incurable and inevitably fatal" (Opinion at 1 n.1).
Because O'Hare-Gratzianna Mem. 2-5 first speaks to their due process claim as set forth in FAC Count II, this opinion will do the same. O'Hare and Gratzianna seek to blunt (or to shunt aside entirely) the fatal impact of Downtown Auto Parks by citing to a number of cases from other jurisdictions, all of them dealing with the cancellation or nonrenewal of towing services--cases that (wholly unlike Downtown Auto Parks, 938 F.2d at 710-11) do find a "property" interest in the sense that is demanded by the Fourteenth Amendment and by the seminal decisions applying it in this area of law ( Board of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972) and Perry v. Sindermann, 408 U.S. 593, 601, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972)).
But all except one of those other decisions dealt with formalized official sources of property rights--created by the relevant state law, as Roth, 408 U.S. at 577 teaches must be the case--of types that are wholly absent here:
1. In Gregg v. Lawson, 732 F. Supp. 849, 854 (E.D. Tenn. 1989), "printed rules and regulations govern the parties' conduct and formal application procedures exist for anyone wanting to be placed on the list."
2. Jennings v. Waldrop, No. 3:86-cv-102-GET, slip op. (N.D. Ga. 1988) dealt with a "written policy of the State Patrol" that set express limitations on a wrecker's removal from the list.
3. Abercrombie v. City of Catoosa, 896 F.2d 1228, 1232 (10th Cir. 1990) was based upon rights expressly created by statute.
4. Pritchett v. Alford, 973 F.2d 307, 317-18 (4th Cir. 1992) was similarly grounded on rights that had been formally and expressly created--in that ...