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11/22/96 O'HARE TRUCK SERVICE v. ILLINOIS STATE

November 22, 1996

O'HARE TRUCK SERVICE, INC., PLAINTIFF-APPELLANT,
v.
ILLINOIS STATE POLICE AND CAPTAIN RICK L. ROKUSEK, DISTRICT 2 COMMANDER, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Du Page County. No. 95--L--1155. Honorable Edward R. Duncan, Jr., Judge, Presiding.

Released for Publication December 31, 1996.

The Honorable Justice Colwell delivered the opinion of the court. McLAREN, P.j., and Hutchinson, J., concur.

The opinion of the court was delivered by: Colwell

The Honorable Justice COLWELL delivered the opinion of the court:

Plaintiff, O'Hare Truck Service, Inc. (O'Hare), filed a two-count complaint against the defendants, Illinois State Police (ISP) and Captain Rick L. Rokusek, seeking monetary damages and injunctive relief from its removal from the district 2 tow list. The complaint alleged that O'Hare was removed from the tow list without due process of law in violation of the Illinois Constitution and the fourteenth amendment to the United States Constitution. The defendants filed a motion to dismiss, alleging that O'Hare's complaint failed to state a cause of action. The circuit court granted the defendants' motion, finding that O'Hare's placement on the tow list did not involve a property right as required to state an action for due process of law. O'Hare appeals. We affirm.

The facts are taken from O'Hare's complaint. The Illinois State Police have maintained a list of towing companies from which they request services to tow abandoned and damaged vehicles from the Illinois highways. Defendant Captain Rokusek is the commander of district 2, and O'Hare had a position on the district 2 tow list from February 1993 to August 16, 1994.

On August 16, 1994, O'Hare received notice from the ISP that it had violated several rules concerning its placement on the tow list. Pursuant to district 2's policy governing the list, O'Hare requested a hearing regarding the alleged rule violations. This hearing occurred on October 11, 1994. On November 16, 1994, Rokusek issued a decision suspending O'Hare from the tow list for 90 days. According to the letter, O'Hare would be reinstated after 90 days if it met all the requirements stated in the letter to Rokusek's satisfaction. On March 1, 1995, the 90-day suspension period ended, and O'Hare sought reinstatement on the tow list. Rokusek, however, refused to reinstate O'Hare on the list.

On June 15, 1995, O'Hare filed a complaint alleging that its rights to due process of law under the Illinois Constitution and United States Constitution had been violated by being permanently removed from the tow list without notice or a hearing. A first amended complaint was filed on September 6, 1995, and the defendants' motion to dismiss was filed on September 19, 1995.

On November 15, 1995, the circuit court heard arguments regarding the defendants' motion to dismiss. The court stated that the question before it was whether O'Hare had showed "a sufficient property interest in being reinstated on [the] list to provide [it] with the opportunity under the due process concept and Section 1983 to bring the action." The court noted that the November 16, 1994, letter from Rokusek stated that O'Hare would have to meet the requirements to Rokusek's satisfaction before he would reinstate O'Hare. The court added that the tow list regulations that the defendants attached to their reply memorandum did not list any specific regulatory system for reinstatement to the tow list. Accordingly, the court reasoned that reinstatement was at the sole discretion of Rokusek, the district commander. The court concluded, therefore, that the regulatory system did not award O'Hare a claimed right to be placed back on the tow list. As a result, the court found that a property right did not exist and dismissed O'Hare's complaint for failure to state a cause of action.

On appeal, O'Hare contends that the court erred in granting the defendants' motion to dismiss because (1) it improperly considered and relied upon the tow list regulation documents attached to the defendants' reply memorandum; and (2) the complaint alleges that O'Hare's position on the tow list is a property right that was denied without due process of law.

We note that the defendants erroneously contend that sovereign immunity bars O'Hare's suit in the circuit court. The law is firmly established that "a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment." Edelman v. Jordan, 415 U.S. 651, 663, 39 L. Ed. 2d 662, 673, 94 S. Ct. 1347, 1356 (1974). Moreover, if a suit is nominally against a state official in his official capacity, but the state is the real party in interest, then a suit against a state official that is in fact a suit against a state is barred regardless of whether it seeks damages or injunctive relief. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 101-02, 79 L. Ed. 2d 67, 79, 104 S. Ct. 900, 908-09 (1984). However, the Court has recognized an exception to this rule, and if a suit challenges the constitutionality of a state official's action, the suit is not one against the State. Halderman, 465 U.S. at 102, 79 L. Ed. 2d at 79-80, 104 S. Ct. at 909.

In this case, O'Hare's complaint states a action against the ISP and Captain Rokusek, individually and in his official capacity. The complaint alleges that the ISP and Rokusek acted unconstitutionally in removing O'Hare permanently from the district 2 tow list. Consequently, the constitutionality of a state official's action is alleged, which meets the exception to the general rule barring suit against the state.

Additionally, the defendants argue that O'Hare's claim is barred because monetary claims are clearly barred by the eleventh amendment to the United States Constitution (U.S. Const., amend. XI). While this assertion of the law is true, O'Hare's complaint requests monetary damages and an injunction. Moreover, in its brief, O'Hare states that it seeks money damages from Rokusek in his individual capacity and does not seek money damages from the State. Indeed, O'Hare's brief is clear that it only seeks injunctive relief from the State. Consequently, because O'Hare only seeks monetary damages from Rokusek in his individual capacity, its suit for monetary damages is not barred by the eleventh amendment.

We now turn to whether the circuit court should have considered the ISP's towing list policy that was attached to the reply memorandum to the defendants' motion to dismiss. O'Hare contends that the court should not have considered the towing policy in its decision because the regulations were presented solely for the ...


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