Seventh Circuit Court of Appeals Commentary : In Their Opinion : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

 DRAPER v. MARTIN (December 30, 2011)

The State of Illinois' fiscal year 2005 budget called for the layoffs of almost 200 Department of Transportation employees. On June 15, 2004 four IDOT employees received written notices advising them that they would be laid off "effective close of business June 30, 2004." Exactly 2 years after that effective date, on June 30, 2006, three of the four filed suit in federal court pursuant to section 1983 alleging violations of the First Amendment and due process. The fourth filed suit in Illinois state court. The state court case was removed to federal court. Judges Scott and Mills (C.D. Ill.), respectively, granted summary judgment to the defendants on statute of limitations grounds. Plaintiffs appeal.

In their opinion, Seventh Circuit Chief Judge Easterbrook and Judges Ripple and Kanne affirmed. The statute of limitations for a Section 1983 claim in Illinois is two years. When the claim arises out of an alleged discriminatory discharge, the cause of action accrues when the plaintiff is put on notice, not on the actual date of discharge. There is an exception for procedural due process cases, which accrue on the date of discharge. Although three plaintiffs did bring procedural due process claims, they waived them when they failed to argue them. Plaintiffs' principal argument is that their notices did not reflect a final termination decision and thus did not start the limitations period running. The Court rejected that contention. Each notice said "you will be laid off." A reasonable person would consider the notice unequivocal.

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HLAVACEK v. BOYLE (December 6, 2011)

Eric Hlavacek enrolled in the Southern Illinois University School of Dental Medicine in 2005. He failed a required course in the fall semester, failed it again the next semester, failed another course in the spring 2007 semester, and failed three courses (one of them twice) in the fall 2007 semester. In early 2008, the University informed Hlavacek that he was being dismissed for unsatisfactory academic performance. Hlavacek challenged his dismissal at a hearing, filed a grievance with the school’s Office of Institutional Compliance, and sought review through several school officials, including the President -- all to no avail. Hlavacek filed suit against the school, alleging they violated his procedural due process rights. Judge Murphy (S.D. Ill.) dismissed the complaint for failure to state a claim. Hlavacek appeals.

In their opinion, Seventh Circuit Chief Judge Easterbrook and Judges Wood and Tinder affirmed. The Court assumed that Hlavacek had a cognizable property interest in his dental school education and turned to whether he was afforded the required process. In the educational institution setting, academic dismissals require very little process. They require notice and a careful decision -- but they do not even require a hearing. Here, Hlavacek was put on notice that he was on academic probation, and he was given repeated second chances. Though he was not even entitled to a hearing, he was given a hearing and a grievance and several additional audiences before the dismissal was final. He received more than due process.

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REDD v. NOLAN (November 29, 2011)

Samone Redd was a probationary correctional officer with the Cook County Department of Corrections in May of 2007 when she witnessed an altercation in which a friend was involved. When the friend later complained that she was hit in the face with a beer bottle during the altercation, the Chicago Police investigated. Redd was initially cooperative. The officers investigating the case later found her to be uncooperative and filed a complaint that she was failing to cooperate in an ongoing investigation. Redd alleges that her "failure to cooperate" was simply her refusal to go along with the officer’s request that she lie. The Sheriff’s Department investigated the charges against Redd and eventually sustained several of them. The results of the investigation ended with a recommendation that the Department terminate Redd. On October 31, just 13 days before her probationary employment would end, Redd was told that she would be discharged if she did not resign. She chose to resign. Redd brought suit against the original investigating officer for tortiously interfering with her employment. She also sued the County for First Amendment retaliation, retaliatory discharge, and procedural due process. The City claim was dismissed for failure to state a claim and Magistrate Judge Denlow (N.D. Ill.) granted summary judgment to the County on the remaining claims. Redd appeals.

In their opinion, Seventh Circuit judges Posner, Flaum, and Hamilton affirmed. With respect to the intentional interference claim, the Court noted that Redd alleged that the complaint with the County was made not by the officer, but by an Assistant State's Attorney. Although she tries to create liability on the part of the officer by alleging a conspiracy, she offers no facts to support the allegation. The Court turned to her First Amendment retaliation and state retaliatory discharge claims. It agreed with the district court that Redd presented no evidence from which a jury could conclude that the County's actions were in retaliation for her conduct during the investigation. The Court went on to note that, even in such had been presented, the investigator was not part of the termination decision. Finally, the Court turned to her due process argument. On its face, the argument seemed to lack merit. Redd was still a probationary officer and possessed no protectable property interest in continued employment under Illinois law. But Illinois courts have concluded that a municipal body can afford more protection than required by Illinois law -- all that is required is a "clear policy statement." In Redd's employment agreement, she confirmed that she was "on probation and can be terminated for cause." Notwithstanding the "for cause" language in the terms of her employment, the Court concluded that the phrase was not a sufficiently clear policy statement to provide protection amounting to a property interest. Since she had no protectable property interest, she was entitled to no particular procedures.

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HERNANDEZ v. FOSTER (August 26, 2011)

Fifteen-month-old Jaymz Hernandez’ parents brought him to the hospital where x-rays established that he had a broken arm. The Hernandezes reported that they thought he had fallen out of his crib. Although the fracture was common in children, a hospital nurse was suspicious. The parents had slightly inconsistent stories about the circumstances of the injury and about whether Jaymz could walk. Jaymz also had unexplained, old bruises. The nurse reported her suspicions to the Department of Children and Family Services. Although the DCFS instructed the hospital to release Jaymz to his parents, it also began an investigation, which it assigned to Pamela Foster-Stith. Foster-Stith interviewed the nurse and doctor and prepared an action plan for a home visit and risk assessment. After receiving the approval of her supervisor, she sent investigator Lakesha Foster to the home. Foster found nothing particular suspicious in her visit. Nevertheless, given the injury and the inconsistent stories, Foster and Foster-Stith wanted a home safety plan. The family resisted. Foster-Stith, in consultation with her supervisor, decided that the Department had to take Jaymz into protective custody. She communicated that decision to Foster, who was still at the family's home. Foster explained the decision to the family, including the fact that they could not have contact with Jaymz during the custody period, and took Jaymz in the custody. Jaymz was placed with his great-grandparents. The next day, two different doctors examined Jaymz. Both concluded that the injury was not suggestive of abuse. Foster also spoke with an assistant state's attorney, who advised her that there was not enough evidence to seek protective custody. Although the Department decided to terminate its protective custody, Foster would still not let the family visit Jaymz. The next day, Foster presented a safety plan to the Hernandezes which would require Jaymz to remain with his great-grandparents with supervised visitation by his parents. After being told that they could not see Jaymz without agreeing to the safety plan, the Hernandezes agreed. The Hernandezes signed another safety plan the following week, which the Department later agreed to terminate. The Hernandezes brought suit pursuant to § 1983 for violations of the Fourth and Fourteenth Amendments, naming Foster, Foster-Stith, and the supervisor. Judge Conlon (N.D. Ill.) granted summary judgment to the defendants on qualified immunity grounds. The Hernandezes appeal.

In their opinion, Seventh Circuit Judges Sykes, Tinder, and Hamilton affirmed in part and vacated and remanded in part. The question for a qualified immunity defense is whether the defendants violated a clearly established constitutional right. The Court considered each plaintiff’s claims separately. First, all three plaintiffs asserted substantive due process claims with respect to the initial seizure. The Court noted that since Jaymz had a Fourth Amendment claim, he could not assert a substantive due process claim. With respect to Jaymz’ Fourth Amendment claim, the Court concluded that the removal was supported by probable cause. It relied on the unexplained injury, the older injury, and the inconsistent and contradictory statements of the parents. Therefore, the defendants were entitled to qualified immunity on that claim. The parents’ substantive due process claims fail for the same reason. Second, the Court addressed the plaintiffs' substantive due process claims relating to the continued withholding. This claim arises from a right to familial relations. The defendants needed reasonable suspicion of abuse to override that right. Again, however, the court concluded that Jaymz’ claim was properly analyzed under the Fourth Amendment while his parents' claims should be analyzed under substantive due process. Here, the Court found genuine issues of material fact with respect to defendants' knowledge that the continued withholding violated constitutional rights. The Court relied heavily on the normal physical exams and the assistant state's attorney's response. Summary judgment was improper. Third, the Court addressed the substantive due process claims regarding the allegedly coerced safety plan. The Court concluded that the defendants had no reasonable suspicion that Jaymz was in danger of abuse when they presented the safety plan. The alleged threats were extremely coercive. The Court concluded that the district court erred in granting summary judgment on those claims. Next, the Court considered the plaintiffs' procedural due process claims. The basis of these claims was that the defendants took Jaymz into custody without any pre-deprivation hearing. Here, the Court concluded that the case law at the time of the removal would not have put a reasonable Department investigator on notice that a pre-deprivation hearing was required. The defendants were therefore entitled to qualified immunity on the due process claim relating to the removal. Again, however, the Court found genuine issues of fact on the due process claim with respect to the safety plan. With the allegations of misrepresentations and coercion, qualified immunity would be appropriate.

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TENNY v. BLAGOJEVICH (August 25, 2011)

An Illinois statute regulates prison commissaries’ sale of goods to inmates. Except for tobacco products, it prohibits any markup over cost in excess of 25%. A 2006 Illinois Inspector General audit concluded that the Illinois Department of Corrections was violating the statute and recommended corrective action. The Department rejected the recommendations and maintained its pricing. Several inmates at the Stateville Correctional Center in Joliet filed grievances. The grievances were denied. The inmates filed two separate lawsuits in federal district court pursuant to § 1983, alleging violations of their Fourteenth Amendment procedural due process rights and violations of the Illinois Constitution. Judges Norgle and Pallmeyer (N.D. Ill.) dismissed the complaints for failure to state a claim. Plaintiffs appeal.

In their opinion, Seventh Circuit Judges Manion, Wood, and Hamilton affirmed and remanded. A procedural due process claim requires that the plaintiff allege a protected property interest, or legitimate claim of entitlement, under state law. Here, the Court assumed, without deciding, that the Illinois statutory cap created such a property interest. Even if there is a property interest, the inmates are not entitled to pre-deprivation review if it would be ineffectual. The Court concluded that no "process" would have prevented the Department from imposing its allegedly unlawful pricing policy. In this situation, an adequate post-deprivation remedy may satisfy due process. The inmates have not even alleged the inadequacy of a post-deprivation remedy. In fact, the Court concluded that the prison grievance procedures, a possible Court of Claims claim, and the availability of a state court claim were adequate post-deprivation remedies. Because both district courts dismissed the complaints with prejudice but neither district court addressed the state constitutional claim, the Court remanded the cases for dismissals of the state claims without prejudice.

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SILIVEN v. INDIANA DEPARTMENT OF CHILD SERVICES (March 16, 2011)

Teresa and Mark Siliven’s two-year-old son had been in daycare with Ashley Woods for almost a year. When Teresa picked him up one day in January 2008, Woods told her that the boy had been acting up. Later that evening, Teresa noticed bruises on her son's arm. Mark said he knew nothing about them, so they filed a child-abuse report with the Richmond, Indiana Police Department. The report was forwarded to the Indiana Department of Child Services(DCS). DCS caseworker Amber Luedike investigated. She interviewed Mark and Teresa, as well as Woods. Luedike also asked the Siliven’s to take their son to the emergency room for an examination. Although the emergency room report reached no conclusion as to the cause of the bruises, another doctor to whom Luedike showed the bruises opined that they were consistent with an adult grabbing the boy's arm. Six days into her investigation, Luedike learned that the DCS had substantiated an incident of child abuse involving Mark and his 15-year-old stepdaughter five years earlier. Luedike met with her supervisor, a staff attorney, and a DCS director. She recommended that DCS remove the boy from his home. She based her recommendation on the likelihood that he had been injured by an adult, the fact that the parents had not been eliminated as the cause, and Mark’s earlier incident. The others agreed, and also agreed that they should remove him on an emergency basis because they would be unable to obtain a court order before the upcoming weekend. Luedike and several sheriff’s deputies went to the Siliven's home, intending to take the boy into protective custody. The DCS director eventually agreed, however, to allow Teresa to take the boy to his grandmother's home in Ohio. The following Monday, a judge concluded that probable cause to believe that the boy’s physical health was seriously endangered did not exist. DCS closed its investigation. The Silivens filed suit against Luedike and the DCS director, alleging federal Constitutional and state law violations. Judge Lawrence (S.D. Ind.) granted summary judgment to the defendants based on qualified immunity. He did not address whether there was a constitutional violation but, under the second prong of the qualified immunity test, held that the constitutional rights allegedly violated were not clearly established at the time of the conduct. The Silivens appeal.

In their opinion, Judges Flaum, Manion, and Evans affirmed. The Court’s two-part test is familiar: whether the complaint alleges a constitutional violation and whether the rights allegedly violated were clearly established at the time of the conduct. Unlike the district court, which ignored the first prong and found the second prong dispositive, the Court started with the first prong and found it dispositive. With respect to the Fourth Amendment unreasonable seizure claim, the Court assumed without deciding that there was a seizure (remember that the boy never left his mother's side) but concluded that the defendants' acts were reasonable under an objective test. There was physical evidence of abuse, Mark had access to the boy, and the DCS had substantiated an earlier abuse claim against Mark. Those facts, particularly combined with the fact that the boy remained with his mother at all times, were enough for the Court to find reasonableness. With respect to the substantive due process claim, the Court noted that the constitutional right to familial integrity has to be balanced against the public interest in child safety. A caseworker need only have reasonable suspicion of past or threatened abuse to take a child into custody. Since that threshold is less demanding than the Fourth Amendment threshold the Court already discussed, the Court had no difficulty in concluding that there was no substantive due process violation. Finally, the Siliven's also alleged a procedural due process violation. Due process does require a pre-deprivation hearing before a child is removed from his home, unless there are exigent circumstances. This also requires an objective test, whether a reasonable caseworker would have believed the child was in immediate danger. Again, that test is less stringent than the Fourth Amendment test. The Court concluded that the defendants met the test.

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MILLER v. DOBIER (February 11, 2011)

Dale Miller is confined pursuant to the Sexually Violent Persons Commitment Act. While confined, he was disciplined on two separate occasions in 2007 and 2008. In 2007, he was accused of threatening a deputy sheriff. A disciplinary committee found him guilty of those charges and reduced his status within the institution. As a result, he lost certain privileges; including longer visitation, later access to the day room, and access to electronic equipment. In 2008, he was accused of damaging furniture, breaking a window, and threatening staff. Again, a disciplinary committee upheld the charges in a hearing. Miller was placed in "close" status for a month. His punishment again included lost privileges. He had an earlier curfew, no yard privileges, shorter visits, no access to special events, and no use of the library or exercise room. Miller brought suit against institution officials pursuant to § 1983 claiming a denial of procedural due process. Judge Baker (C.D. Ill.) granted summary judgment to the defendants. Miller appeals.

In their opinion, Chief Judge Easterbrook and Judges Posner and Wood affirmed. The Court never addressed Miller’s evidence of procedural deficiencies. Instead, it concluded that the due process clause was not even implicated. There is no constitutional due process requirement unless there is a deprivation of liberty or property. When a lawfully committed person is subjected to discipline, the due process clause is not implicated unless the institution substantially worsens the conditions of his confinement. Here, even while Miller was in "close" status, he had much freedom. The reduction in his status does not amount to a deprivation of a liberty interest.

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ATKINS v. CITY OF CHICAGO (January 25, 2011)

In late 2003, Chicago police officers arrested William O. Atkins because they had a parole violation warrant for "William Atkins." Atkins was kept in custody overnight and then transferred to the custody of the Illinois Department of Corrections and held for 36 days. Atkins alternately claimed that he was not the warrant's William Atkins and that he was that William Atkins but that he could not violate his parole because it had expired. After his release, Atkins sued the arresting officers, the City of Chicago, and several employees of the Department of Corrections. The complaint alleged an unlawful arrest as against the City defendants and an unlawful detention as against the state defendants. Judge Shadur (N.D. Ill.) dismissed the suit for failure to state a claim. Atkins appeals.

In their opinion, Judges Posner, Manion, and Hamilton (concurring in part and concurring in judgment) affirmed. The Court began with the arrest and whether the officers had probable cause. Although the police lacked probable cause to stop the vehicle in which Atkins was a passenger, they nevertheless had an affidavit with his name on it. If he was the person named in the warrant, the absence of probable cause to stop the car does not vitiate the probable cause to arrest him. The affidavit matched Atkins’ first name, last name, gender, race, day of birth, month of birth, and the first three digits of his Social Security numbers. It did not match Atkins’ height, weight, or year of birth. Given the closeness of the match, the Court concluded that the officers did not err in arresting Atkins or, if they did, it was a reasonable error and did not violate Atkins's constitutional rights. Atkins' stronger complaint is that the state defendants held him unlawfully for 36 days, despite his protests. The Court stated that alleged parole violators must be afforded a preliminary hearing "as promptly as convenient" to determine probable cause and a full hearing within a "reasonable time." The hearings can be administrative. Atkins had an administrative hearing on the seventh day of his incarceration but failed to convince the hearing officer that he was either not the same William Atkins or that his parole has expired. It was on the 36th day that Atkins had his full hearing and was released. The Court noted a possible distinction between the due process rights of an alleged parole violator who admits the parole but denies the violation and an alleged parole violator who denies that he is even on parole. The former has already agreed to administrative adjudication of parole as one of the terms of his parole. The latter has not. But that would give every alleged parole violator an opportunity for two hearings. Particularly given the Court's belief that a judicial hearing is not necessarily superior to an administrative hearing, the Court doubted that the difference would lead to a constitutional distinction. It never resolved the issue, however, because its belief that the question was novel inescapably led to the conclusion that the defendants were entitled to qualified immunity. Finally, the Court addressed Atkins' claim that he was mistreated during the 36 days of confinement. The Court ultimately concluded that the claims were properly dismissed. Notwithstanding the fact that Atkins was represented by counsel and had already amended his complaint three times, the Court noted that some allegations were highly implausible while others were contradicted or internally inconsistent. Atkins never stated a plausible claim for a constitutional violation. In addition, Atkins has died and his the estate has no way of even presenting his version of the facts.

Judge Hamilton joined the majority opinion with respect to the claims against the City defendants, the conditions of confinement claims, and the qualified immunity holding He wrote separately, however, to address the merits of the alleged due process violation. Generally, a person arrested without a warrant is entitled to a judicial hearing within 48 hours. An alleged parole violator is entitled to much less protection -- but only because he is already on parole and has a more limited liberty interest. Here Atkins claimed that he was not the parolee named in the warrant. Judge Hamilton therefore concluded that due process imposes procedural protections on identification challenges to parole violation warrants. He addressed the issue under the Matthews framework, considering: the private interest, the risk of erroneous deprivation, and the government interest. The private interest is basic liberty, the risk of error is likely significant, and the government interest is closely aligned with the private interest. Weighing those factors, Judge Hamilton concluded that a claim of misidentification should be resolved by a prompt appearance before a judge.

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BETTENDORF v. ST. CROIX COUNTY (January 20, 2011)

John Bettendorf has owned a parcel of property in St. Croix County in west-central Wisconsin for decades. In the 1970s and early 1980s, Bettendorf operated a carpet sales business on the property although it was zoned agricultural-residential. In 1985, Bettendorf sought and received permission to use the property for commercial purposes. The ordinance granting permission also provided, however, that the permission was personal to Bettendorf and could not be transferred. Almost 20 years later, Bettendorf sought a declaration in state court that the limitations on the rezoning were void and should be stricken. Unfortunately, the state court declared the entire ordinance void. The County withdrew its permission for commercial operations. Bettendorf filed suit in federal court alleging an unconstitutional taking and violations of his procedural and substantive due process rights. Judge Crabb (W.D. Wis.) granted summary judgment to the County. Bettendorf appeals.

In their opinion, Judges Bauer, Flaum, and Hamilton (concurring in part and dissenting in part) affirmed. The Court first addressed the takings claim. It stated that Bettendorf had to establish that government action had deprived him of "all or substantially all" use of the property. The relevant factors are the nature of the regulatory scheme, the severity of the economic impact, and the degree of interference with the owner's investment opportunities. Here, there was no government intrusion or interference with investment opportunities because Bettendorf himself brought the state action that resulted in the declaration that the ordinance was void. Bettendorf also has not lost the use of the property. He is free to use the property for the agricultural and residential purposes for which it is zoned. The Court thus rejected the takings claim. On the substantive due process claim, the Court stated that Bettendorf would have to establish that the County's decisions were "arbitrary, oppressive, or unreasonable." But here, the County's actions were taken in response to a court order invalidating the ordinance. The Court rejected the substantive due process claim, finding that action utterly reasonable. Finally, the Court addressed and rejected Bettendorf's procedural due process claim. Bettendorf's due process claim is that he was not afforded the typical County appeals process in a rezoning case. The Court noted, however, that it was Bettendorf who chose to challenge the ordinance in state court in lieu of the local appeals process. Bettendorf was afforded adequate process in those state court proceedings. Even if the local appeals process was a superior method for resolving the issue, due process does not require superior process -- only constitutionally adequate process.

Judge Hamilton concurred with the majority's treatment of the due process claims but dissented from its treatment of the takings claim. He relied on the "vested rights" theory that the majority concluded was inadequately presented. Judge Hamilton surveyed the "long and winding history" of the concept in American law. Under the concept, an existing and lawful property use is a critical consideration in a takings claim. Judge Hamilton thus addressed the three factors quite differently than did the majority. First, the nature of the government interference is significant in that it prohibited a long time existing and lawful property use. Second, the economic impact appears to be significant although unclear on the pleadings. Third, although Bettendorf did agree to the condition, the withdrawal of permission substantially interfered with his investment expectations. Judge Hamilton recognized that his consent to the condition limited his expectations to continued commercial use only as long as he owns the property and would thus negatively affect any compensation due.

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LABELLA WINNETKA, INC. v. THE VILLAGE OF WINNETKA (December 29, 2010)

LaBella Winnetka operated as a restaurant in Winnetka, Illinois since 1993. It occupies a leased space and renews the lease from time to time. It also has a liquor license. Each year, Winnetka sends it a renewal form. Each year LaBella completes the form and Winnetka renews the license. A fire at the building in early 2007 damaged the roof over the LaBella dining room and forced its closure. The Village refused to allow repairs to the restaurant’s interior until the roof was fixed. It also refused to allow LaBella to reopen the undamaged portion of its leased premises. At the same time, other restaurants, even one operating out of the same building, were allowed to reopen in allegedly similar circumstances. LaBella's most recent liquor license was due to expire in March of 2008. Winnetka never sent a renewal form and terminated the license went LaBella did not file for renewal. LaBella brought suit against the Village and the Village Manager, alleging a violation of its equal protection, substantive due process, and procedural due process rights. The complaint alleged that the benefits bestowed on the other restaurants came about because of their friendships with the Village Manager. Judge Kendall (N.D. Ill.) granted defendants' motion to dismiss. LaBella appeals.

In their opinion, Seventh Circuit Judges Posner, Flaum, and Sykes affirmed. The Court first considered the "class of one" equal protection claim. In order to state such a claim, one must allege treatment different from others "similarly situated." LaBella concedes that the restaurants that were allowed to reopen did not incur the same major fire damage as the LaBella roof. They are therefore not "similarly situated" and the equal protection claim fails. The Court next considered and rejected LaBella's substantive due process claim relating to its property interest in its lease and business. In order to prevail on that claim, LaBella had to show an independent constitutional violation or the inadequacy of state law remedies. It did neither. Finally, the Court rejected LaBella's procedural due process claims related to the liquor license non-renewal. First, to the extent the claim is based on the Village's simple failure to send a renewal form, there was no constitutional deprivation. Second, to the extent the claim is that the Village revoked the license without notice or hearing, the allegations of the complaint fall far short of even the notice pleading requirements of the federal rules. Finally, the claim fails because LaBella does not even allege that it took advantage of post-deprivation remedies or that they were inadequate.

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KAHN v. BLAND (December 23, 2010)

The “Section 8” federal housing subsidy program provides rental assistance to low-income families. Although funded federally, the program is administered by local public housing agencies. Both the beneficiary families and the participating landlords must meet certain qualifications and are governed by a host of regulations. In Champaign County, Illinois, the program is run by the Housing Authority of Champaign County (HACC). In 2003, Latif Kahn, a qualified landlord with a contract with HACC, rented a subsidized apartment to Andrew Washington. At Washington' request, and allegedly with the approval of HACC, Kahn also rented some space in the building's basement to Washington outside the program. After Kahn evicted Washington in for nonpayment of rent, Washington brought the existence of this "side lease" to the HACC's executive director. The director advised Kahn that the lease was a violation of program regulations and that he was terminating Kahn's contracts and barring him from the program. Kahn was never given an opportunity to explain or appeal. The HACC sent a letter to each of Kahn's four tenants and advised them that they would have to move. In fact, however, Kahn’s contract with respect to only one of the tenants was terminated pursuant to the letter. Another contract was terminated when the contracted unit failed to pass an inspection. The other two tenants actually remained. One prospective tenant was denied an opportunity to rent an apartment from Kahn and was told by HACC that Kahn was an "undesired person." Kahn brought suit, alleging procedural and substantive due process claims against the director and a due process claim against HACC. Chief Judge McCuskey (C.D. Ill) granted the defendants' motion for judgment as a matter of law at the close of plaintiff's case. Kahn appeals.

In their opinion, Seventh Circuit Chief Judge Easterbrook and Judges Posner and Tinder affirmed. Both the substantive and procedural due process claims require the identification of a property or liberty interest. The Court concluded that Kahn had not established a property interest from a) his termination from the program, b) the termination of the contracts, or c) disputes regarding the remaining contracts. First, notwithstanding his allegations, the record was clear that he was never terminated from the program. The director made threatening statements but had no authority to bar Kahn from the program and, in fact, Kahn continued to participate in the program. Second, although the HACC did refuse to enter into new contracts with Kahn, nothing in the statute or regulations entitles him to enter into new contracts. Finally, Kahn's rights with respect to his existing contracts do not raise constitutional issues. They simply give rise to possible state breach of contract claims. With respect to a liberty interest, the Court concluded that Kahn forfeited the claim -- but also concluded that the claim would not succeed. The liberty interest recognized by the Fourteenth Amendment protects a person's right to pursue an occupation, but not a specific job. Here, although the defendants' conduct may have affected Kahn 's ability to lease to certain individuals, it did not preclude him from his occupation.

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PALKA v. SHELTON (October 7, 2010)

Peter Palka's hopes of becoming a Chicago police officer were dashed when he was kicked out of the Police Academy. His father Tadeusz, a 28-year veteran of the Cook County Sheriff's Department, thought the termination was discriminatory and based on the fact that Peter was Polish. The elder Palka tried to convince Matthew Tobias, the official in charge of the Academy, to reinstate his son. Tobias assured Palka that Peter was terminated for cause and refused to reverse the decision. A few months later, the receptionist at his children’s school advised Tobias that an unidentified man with a Polish accent called and asked questions about the children. Tobias suspected Palka and began an investigation. Phone records revealed that someone in the Cook County Building at 69 W. Washington in Chicago had placed a call to the school on the afternoon in question. Tobias was now convinced -- he reported the call to the local police, he opened an incident report and checked Palka for outstanding warrants, he asked senior officers to speak with Palka, and he filed a formal complaint with the Sheriff's Department's Office of Internal Affairs. Palka was suspended with pay. Shortly before a formal disciplinary hearing that would decide his fate, the Department offered Palka full retirement benefits (including badge and firearm credentials) if he resigned. He did resign, but never received his credentials. Palka filed suit pursuant to § 1983, alleging procedural and substantive due process violations, occupational liberty deprivations, and Monell claims. Judge Kendall (N.D. Ill.) dismissed the complaint with prejudice. Palka appeals.

In their opinion, Judges Ripple, Kanne, and Sykes affirmed. The Court rejected each of Palka’s contentions in turn. First, the procedural due process claim relating to his suspension fails because a suspension with pay does not trigger due process protection unless there is a claim of indirect economic consequences. Palka makes no such allegation. Second, the procedural due process claim relating to his resignation also fails. Palka was simply given a choice to avail himself of the procedural protections offered by the Merit Board (and risk losing everything) or to resign with retirement benefits. He was not deprived of due process protections -- he traded them away. Third, the substantive due process claim fails. Public employment termination does not give rise to a substantive due process claim unless it is accompanied by an allegation of other constitutional violations or inadequate state remedies, neither of which is present here. To the extent that Palka relied on police misconduct to support the substantive due process claim, the Court stated that it did not meet the high “shocks the conscience” threshold. Fourth, the occupational liberty claim fails. Palka failed to allege public disclosure an essential element of the claim. The County's failure to grant him badge and firearm credentials, on which Palka bases this claim, was not publicly disclosed nor does Palka allege that any potential future employer learned of it. Finally, because there is no constitutional violation, there can be no Monell liability.

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LEAVELL v. ILLINOIS DEPARTMENT OF NATURAL RESOURCES (April 6, 2010)

Eva Leavell and her family own or lease hundreds of oil wells in southern Illinois. Most of the permits are in Ms. Leavell’s name -- but at least one is in the name of her husband, Daniel. Beginning in the year 2000 and continuing for several years, the Illinois Department of Natural Resources conducted a number of hearings to identify abandoned wells that should be plugged. The proceedings resulted in several disputes between the Department and Ms. Leavell, including a state court lawsuit. In 2008, the Department held a similar hearing concerning a well for which Daniel was the permittee. The Department sent a certified letter to Daniel -- but Daniel had already died. No representative was notified and the hearing proceeded. The Department ordered the well plugged. The estate has not challenged that ruling in any administrative or judicial proceeding. Ms. Leavell instead brought a lawsuit as administratrix of his estate, alleging that the Department violated Daniel's procedural due process rights in failing to provide sufficient notice of the 2008 hearing. The district court dismissed on the grounds of issue preclusion, apparently believing that the complaint referred to the same conduct that had already been litigated in state court with respect to the wells for which Ms. Leavell was the permittee. The court also denied Ms. Leavell's motion to reconsider. The court stated that the assertion that Daniel was the permit holder was raised for the first time in the motion to reconsider. Ms. Leavell appeals.

In their opinion, Circuit Judges Ripple and Rovner and District Judge St. Eve affirmed. The Court noted that, after concessions in the briefs and oral argument, the only issue on appeal was whether Leavell stated a due process claim and, if not, whether the dismissal is with or without prejudice. Any procedural due process inquiry requires the identification of the property interest at issue and the necessary process due in connection with the deprivation of that interest. The Court distinguished between procedural due process claims based on established state procedure and those based on the random and unauthorized acts of state actors. With respect to the former, post-deprivation procedures are not necessarily adequate. In those cases, a pre-deprivation hearing may be required. With respect to the latter, however, pre-deprivation hearings are usually impossible because of the inability to predict when the random acts will occur. There, procedural due process requirements are satisfied if the state provides an adequate post-deprivation remedy. Leavell does not assert that the state lacks an adequate notification procedure. Rather, she alleges that a Department employee failed to implement an existing procedure for notifying a permittee of a hearing. Therefore, only a post-deprivation remedy is required. Since she conceded that there are state remedies available and that she has not taken advantage of them, her claim must fail. With respect to whether the dismissal should be with or without prejudice, the Court distinguished between dismissals for failure to exhaust administrative remedies or failure to satisfy a condition precedent and the case before it. Here, Leavell's failure to take advantage of an adequate state court remedy is a failure to allege a necessary element of the cause of action. The claim should be dismissed with prejudice.

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PRO'S SPORTS BAR & GRILL v. CITY OF COUNTRY CLUB HILLS (December 16, 2009)

Pro's Sports Bar & Grill is located in Country Club Hills, Illinois. Pro's submitted an application for a liquor license. Pursuant to local procedure, the City Council considered an ordinance on November 26, 2007 for the granting of that license. There is significant dispute about what happened at the council meeting. At a minimum, there is confusion about the formalities undertaken. There certainly was discussion about granting a license with limited hours. In any event, at the end of the meeting, an ordinance granting the license was approved. A Class A license with regular hours was issued. Shortly thereafter, however, the license was reissued as a Class A-1 license (a category of license not even defined in the municipal code). The local police began enforcing the license as if it had the limited hours which were discussed in the earlier council meeting. In 2008, when Pro's applied for a reissuance of the license, it was issued with limited hours, even though the normal practice is to be issued a license on its original terms and conditions. Pro's filed suit pursuant to § 1983, alleging a violation of its procedural due process rights. The court granted a preliminary injunction prohibiting the enforcement of the limited hours. The City of Country Club Hills appeals.

In their opinion, Judges Flaum, Manion and Wood affirmed. The Court started with its two-part test for approaching a procedural due process claim. It first identifies whether there is a protected liberty or property interest and then asks whether a party was deprived of its interest without due process. The principal issue in dispute was whether the original license contained the limited hours. If it did, the renewal did not result in any deprivation. If it did not, the renewal restrictions would have resulted in a deprivation. The bare language of the original ordinance granted an unrestricted license. The Court found the language of the ordinance unambiguous and rejected the defendants' argument that it should be interpreted otherwise because of either the intent of the City Council or because it was a scrivener's error. Having found a deprivation of the property interest, there was little dispute about the City's failure to provide adequate process -- since it provided none. Finally, the Court found no error in the lower court's balancing of the preliminary injunction factors.
 

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IDRIS v. CITY OF CHICAGO (January 5, 2009)

The City of Chicago (the City”) has installed cameras at intersections since 2003. They are used to identify drivers who fail to obey red lights. The ordinance makes the owner (or, in the case of a leased vehicle, the lessee) of the vehicle liable for the fine – regardless of who was driving at the time. A group of car owners brought suit. Each had been fined for a traffic violation. In each case, however, someone other than the car’s owner was driving the car at the time of the violation. The plaintiffs allege that the ordinance violates due process and equal protection. The court granted summary judgment for the City. Plaintiffs appeal.

In their opinion, Chief Judge Easterbrook and Judges Ripple and Rovner affirmed. The Court quickly disposed of plaintiffs’ substantive due process argument. It noted the absence of a fundamental liberty interest – a prerequisite for substantive due process. The Court then considered the enforcement system under the rational-basis doctrine. Again, it seemed to have little difficulty in finding the ordinance rational. The owner-liable system reduces the cost of enforcing the law and improves compliance with the law. The facts that it raises revenue and adopts a system different from the state system do not make it irrational. The distinction between owners and lessors is not discriminatory – it is, in fact, the rational approach. Finally, the Court rejected the plaintiffs’ procedural due process arguments. Defenses and objections must be made at a hearing and reviewed in state court before they can be the subject of a federal court proceeding.

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