Falls v. Town of Dyer, Ind.

Decision Date22 May 1989
Docket NumberNo. 88-2467,88-2467
Citation875 F.2d 146
PartiesPhillip H. FALLS, doing business as Fast Lane Foods, Plaintiff-Appellant, v. TOWN OF DYER, INDIANA, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Fred W. Grady, Portage, Ind., for plaintiff-appellant.

Elizabeth A. Brown, Judge & Knight, Park Ridge, Ill., defendants-appellees.

Before WOOD, Jr., CUDAHY and EASTERBROOK, Circuit Judges.

EASTERBROOK, Chief Judge.

Phillip Falls uses portable signs in front of his convenience store in Dyer, Indiana, and the Town repeatedly has cited him for violating its zoning ordinances. Falls, a scofflaw, believes that the Town turns a blind eye to his competitors' portable signs. He filed this suit under 42 U.S.C. Sec. 1983, contending that the Town's enforcement of these concededly valid ordinances against his confessed violations infringes his constitutional rights.

Falls sought an injunction against adjudication of the complaints the Town had filed against him in state court. Falls should have raised his selective-prosecution defense in the state proceeding. In fact he did, and he lost. He was convicted and did not appeal. So by the time the district court decided the federal case, there were two potential obstacles: the comity doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), which applies even after the state prosecution has run its course, Huffman v. Pursue, Ltd., 420 U.S. 592, 607-09, 95 S.Ct. 1200, 1209-10, 43 L.Ed.2d 482 (1975), and principles of preclusion (res judicata and collateral estoppel). The comity doctrine of Younger, designed for the state's protection, is the state's to claim or spurn, Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 479-80, 97 S.Ct. 1898, 1903-04, 52 L.Ed.2d 513 (1977), and preclusion is an affirmative defense that has yet to be raised. Both Younger and preclusion could pose interesting questions. Wooley v. Maynard, 430 U.S. 705, 710-12, 97 S.Ct. 1428, 1433-34, 51 L.Ed.2d 752 (1977), might allow Falls to seek relief against future repetitive prosecutions; preclusion is complicated by the fact that Falls was acquitted in one trial before being convicted in a second. See also David P. Currie, Res Judicata: The Neglected Defense, 45 U.Chi.L.Rev. 317 (1978). Because the parties have not presented these points we, like the district court, pass them by for now--although they remain to be considered later.

The district court granted the Town's motion to dismiss under Fed.R.Civ.P. 12(b)(6), holding that disputes about the interpretation and application of zoning laws do not state claims under Sec. 1983. Correct as this is, Wayte v. United States, 470 U.S. 598, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985); Harding v. County of Door, 870 F.2d 430 (7th Cir.1989); Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461 (7th Cir.1988); Muckway v. Craft, 789 F.2d 517 (7th Cir.1986), the point does not dispose of our case. Falls does not want the Town to prosecute someone else (as in Muckway ); he does not contend that the Town has misinterpreted or misapplied its own law. Falls alleges instead that the Town's criteria for choosing whom to prosecute are unconstitutional.

Falls contends that he is the only person against whom the Town enforces the portable-sign ordinance--at least when his complaint is liberally construed, as it must be so early in the case. Acme Propane, Inc. v. Tenexco, Inc., 844 F.2d 1317, 1325 (7th Cir.1988). Not because he is black, or Protestant, or Republican: Falls disclaims any contention that the Town used these forbidden criteria. Just why Dyer would harass him is obscure. Perhaps his neighbors do not like the decor of his living room or the quality of his food. No matter the reason for lighting upon Falls as a solitary victim, the Town has done so (we must assume).

If the Town of Dyer enacted an ordinance saying: "No one whose last name begins with 'F' may use a portable sign in front of a 24-hour food shop, but everyone else may", that law would be whimsical, capricious, without a rational basis for support. In a small town it would be no different from a bill of attainder, which Article I Sec. 10 forbids to the states. The Town's lawyer conceded at oral argument that such a law would be unconstitutional, and so we may assume.

Dyer did not enact such an ordinance, but not all law is inscribed on the books. State and local government may establish rules through enforcement as readily as through legislation, for states need not observe the separation of powers that the Constitution prescribes for the national government, and many cities elect to fuse legislative and executive powers in the "city manager" style of government. See Whalen v. United States, 445 U.S. 684, 689-90 n. 4, 100 S.Ct. 1432, 1436 n. 4, 63 L.Ed.2d 715 (1980); Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 615 n. 13, 94 S.Ct. 1323, 1330 n. 13, 39 L.Ed.2d 630 (1974); Highland Farms Dairy, Inc. v. Agnew, 300 U.S. 608, 612, 57 S.Ct. 549, 551, 81 L.Ed. 835 (1937); Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 225, 29 S.Ct. 67, 69, 53 L.Ed. 150 (1908); Dreyer v. Illinois, 187 U.S. 71, 83-84, 23 S.Ct. 28, 32, 47 L.Ed. 79 (1902); United Beverage Co. v. Indiana Alcoholic Beverage Comm'n, 760 F.2d 155 (7th Cir.1985); cf. University of Tennessee v. Elliott, 478 U.S. 788, 796-99, 106 S.Ct. 3220, 3225-27, 92 L.Ed.2d 635 (1986). Dyer may, if it wishes, adopt the rule "No one whose last name begins with 'F' shall use portable signs" through an ordinance saying "No one shall use portable signs", followed by enforcement only against those whose names begin with "F".

Dyer does not contend that Falls is a "legitimate class of one", see Nixon v. Administrator of General Services, 433 U.S. 425, 472, 97 S.Ct. 2777, 2805, 53 L.Ed.2d 867 (1977). Unless the Town could legislate a special rule for Falls, he is entitled to try to show that Dyer has singled him out, through a combination of legislative and executive action, for unique treatment. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886), holds that an ordinance forbidding all persons to operate wooden laundries, but enforced only against persons from China, is the same as a law forbidding only the Chinese to operate wooden laundries. By the same token a law enforced only against Falls is the same as a law naming Falls as a unique class. Given the Town's concession that Falls is not a legitimate class of one, such a law could not be sustained. See LeClair v. Saunders, 627 F.2d 606, 611 (2d Cir.1980). Stopping this litigation on a motion under Rule 12(b)(6) was premature.

Whether this will do Falls any good remains to be seen. Although Falls gets past the hurdle of Rule 12(b)(6), not only the need for...

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