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January 3, 1994

O'HARE TRUCK SERVICE, INC., et al., Plaintiffs,
CITY OF NORTHLAKE, et al., Defendants.


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).

 This Court has therefore reviewed both the FAC and all of the cases that are sought to be relied on in the Memorandum of Law, and it concludes that the problems initially identified in the Opinion have not been and cannot be overcome by O'Hare and Gratzianna. Accordingly both the FAC and this action are dismissed for the reasons stated both in the Opinion (which of course need not be repeated here) and in this opinion.

 Due Process Claim

 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: *fn1"


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 instance by formally adopted regulations.

 Only the unpublished opinion in Morris v. McCallie, Civ. 4-91-032, slip op. (E.D. Tenn. 1993) dealt with a situation that resembled the informal practice described in the current case, nonetheless finding that the wrecker had a "property" interest under those circumstances.

 But we are regularly reminded by our own Court of Appeals that opinions by district judges do not create precedents in their own bailiwicks, let alone on foreign soil. *fn2" And for its part our Court of Appeals has regularly continued to make it plain that "the 'mutually explicit understandings' that constitute property interests under the holding of Perry cannot be based on the representations of government officials who are not authorized to make such representations" ( Wolf v. City of Fitchburg, 870 F.2d 1327, 1334 (7th Cir. 1989), quoted and reconfirmed in Santella v. City of Chicago, 936 F.2d 328, 331 (7th Cir. 1991)). Nothing that is alleged in the FAC about the practice followed by Northlake's prior Mayor satisfies the need for a binding and enforceable right--to the contrary, the FAC says nothing at all about any ordinance adopted, or any other action taken, by Northlake's governing body that is authorized to make such commitments ( Santella, 936 F.2d at 331-32).

 Accordingly what was said in the Opinion remains true. Downtown Auto Parks, coupled with the other uniform case law from our Court of Appeals that fleshes out the concept of "property" for due process purposes, mandates the dismissal of the O'Hare-Gratzianna due process claim. *fn3"

  First Amendment Claim

 As to the free-speech-based claim advanced in FAC Count I, O'Hare-Gratzianna Mem. 6 urges that Downtown Auto Parks cannot be reconciled with Rutan v. Republican Party of Illinois, 497 U.S. 62, 111 L. Ed. 2d 52, 110 S. Ct. 2729 (1990). But in the judicial hierarchy, district judges are bound by the teaching of their Courts of Appeals. And here is what Downtown Auto Parks, 938 F.2d at 710 (citations to decisions by other Courts of Appeals omitted) says about the effect of Rutan:


Rutan did extend First Amendment protection, but only within the context of government employment. Rutan was the culmination of a line of cases "concerned only with the constitutionality of dismissing public employees for partisan reasons." Elrod, 427 U.S. at 353, 96 S. Ct. at 2680. All circuits considering the question of whether to extend the holdings of Elrod and Branti to independent contractors have declined. Since Rutan was decided, the Sixth Circuit has also refused to prohibit the government from considering political criteria in awarding of public contracts. We continue to concur in the view taken by the other circuits, and hold that political favoritism in the awarding of public contracts is not actionable.

 Judge Kocoras has already rejected a litigant's invitation to disavow Downtown Auto Parks on the authority of Rutan ( Medcare HMO, 788 F. Supp. at 1465-66), and this Court of course does the same. *fn4" Thus nothing asserted in the current filings by O'Hare and Gratzianna has altered the Opinion's indications in this respect either. Dismissal of the O'Hare-Gratzianna "freedom of speech" claim is required as well.


 Although Paxson and Sapoznik have legitimate dual grounds for dismissal from this action (see n.3), their second ground is not essential to the end result: This lawsuit is dead on the bases discussed in the text of this opinion--bases that those individual defendants share with Northlake itself. Both the FAC and this action are dismissed with prejudice.

 Milton I. Shadur

 Senior United States District Judge

 Date: January 3, 1994


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