965 F.2d 452 (7th Cir. 1992), 91-1295, Wroblewski v. City of Washburn

Docket Nº:91-1295.
Citation:965 F.2d 452
Party Name:John F. WROBLEWSKI, Plaintiff-Appellant, v. CITY OF WASHBURN, Defendant-Appellee.
Case Date:June 12, 1992
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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965 F.2d 452 (7th Cir. 1992)

John F. WROBLEWSKI, Plaintiff-Appellant,


CITY OF WASHBURN, Defendant-Appellee.

No. 91-1295.

United States Court of Appeals, Seventh Circuit

June 12, 1992

Argued Nov. 1, 1991.

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Joe Thrasher, Weisel, Thrasher, Doyle & Pelish, Rice Lake, Wis. (argued), for plaintiff-appellant.

Stephen P. Juech (argued), Paul F. Heaton, Frisch Dudek, Dennis M. Grzezinski, Milwaukee, Wis., for defendant-appellee.

Before CUDAHY and FLAUM, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

CUDAHY, Circuit Judge.

John Wroblewski, a former mayor of Washburn, Wisconsin, alleges that the city of Washburn singled him out for arbitrary treatment by adopting a policy that made his employment at a city marina virtually impossible. He contends that the city's action, specifically directed at him, deprived him of liberty without due process and of the equal protection of the laws in violation of the Fourteenth Amendment. The district court dismissed Wroblewski's complaint for failure to state a claim. We affirm.


We review the grant of a motion to dismiss de novo, assuming the truth of all well-pleaded factual allegations and making all possible inferences in favor of the plaintiff. Prince v. Rescorp Realty, 940

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F.2d 1104, 1106 (7th Cir.1991). With this standard in mind, we read Wroblewski's amended complaint to state the following facts.

Sometime before 1981, the city of Washburn (the City) constructed a marina on Lake Superior which it owned and continues to own. In 1981, a company known as Washburn Marine, Inc. was formed to operate the marina. In January 1982, the company leased the marina property from the City for a 20-year period. By 1983, Washburn Marine was experiencing financial difficulties, due in part to the size of its lease payments to the City. Wroblewski and two others were approached to buy out the interests of the company's existing shareholders, and they did so. At about the same time, and again later in 1983, Washburn Marine and the City agreed to certain restructurings of the lease payments.

At some point Wroblewski assumed the responsibilities of president and managing officer of Washburn Marine. In 1985, the company attempted to renegotiate the lease with the city or to purchase the marina outright. The lease payments were higher than the marina operation could support. Certain city officials in a position to control the actions of the city council and Harbor Commission developed animosities toward Wroblewski and resented his attempts to renegotiate the lease.

By August 1986, certain individuals and corporations were willing to invest in the marina operation through Washburn Marine or another entity if the City would agree to restructure the lease or sell the marina. Also by that date, Washburn Marine had become unable to make its lease payments on the marina property. The City then entered into another agreement with the company, deferring part of the lease payment and promising to negotiate in good faith with Washburn Marine and another corporation regarding restructuring of the lease agreement, including rental payments due under it. The City ostensibly entered into negotiations with a potential purchaser, but it did not honor its commitment to negotiate directly with Washburn Marine on restructuring the lease payments.

The City then began eviction proceedings against Washburn Marine because of the latter's inability to make the lease payments. Washburn Marine was evicted, and the City leased the marina facility to a different corporation on terms far more favorable than those ever offered to Washburn Marine.

The City continued to negotiate with potential buyers or lessees of the marina facility. It adopted the policy that any new marina operator could not employ or subcontract work to Wroblewski or any member of his family unless it paid a substantial financial penalty in the form of the deferred payments owed by Washburn Marine. The City communicated this policy to potential purchasers on several occasions. Were it not for the City's policy, it is reasonably certain that investors would have purchased the facility and employed Wroblewski. A private non-profit yacht club approached the City with plans to take over operation of the marina, but the City refused to negotiate with the club because it knew that the club would employ Wroblewski or members of his family. Wroblewski had no personal liability for the debts owed by Washburn Marine to the City. He was given no explanation for the City's treatment of him and no hearing to respond to the treatment.

The City then commenced a pattern of "baseless" litigation against Wroblewski and the other shareholders of Washburn Marine, accusing Wroblewski of racketeering and other crimes. The City's purpose was to prevent Wroblewski from conducting business within the City and to coerce him to waive his right to bring legal action against the City. The City tried to get Wroblewski to sign a release of his potential federal claims against it in exchange for dismissal of the state court litigation; Wroblewski refused to do so. In the course of the litigation, the City refused to proceed with discovery or submit evidentiary proof of its allegations, and the litigation was ultimately dismissed by the Circuit Court of Bayfield County as a sanction

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for the City's violation of scheduling orders.

Afterward, the City's mayor announced in public that its lawsuit had been dismissed because the City did not believe it could collect a judgment from Wroblewski. This statement was false and it brought Wroblewski into public disrepute and ridicule. As a result of the foregoing actions, Wroblewski was required to leave Wisconsin for a period of time to obtain employment.

Wroblewski brought this action against the City under 42 U.S.C. § 1983, alleging that the City had violated his constitutional rights to procedural and substantive due process and his right to equal protection of the laws; that the City's policy constituted an unconstitutional bill of attainder; and that the City had infringed his right to interstate travel. The district court dismissed the action for failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6). On appeal, Wroblewski presses only his due process and equal protection claims.


  1. Procedural Due Process

    The requirements of procedural due process encompassed by the Fourteenth Amendment apply only to a state's deprivation of life, liberty or property. Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). We therefore begin by identifying the underlying interest allegedly deprived by the state actor. Wroblewski argues only that he has been deprived of a liberty interest by the City's actions. 1 His contention is that "the City saw to it that John Wroblewski could not work at [the] marina" in violation of his occupational liberty.

    The concept of liberty protected by the due process clause has long included occupational liberty--"the liberty to follow a trade, profession, or other calling." Lawson v. Sheriff of Tippecanoe County, 725 F.2d 1136, 1138 (7th Cir.1984); see also Illinois Psychological Ass'n v. Falk, 818 F.2d 1337, 1343 (7th Cir.1987); Laurence H. Tribe, American Constitutional Law § 15-13, at 1373-78 (2d ed. 1988). The cases have consistently drawn a distinction, however, between occupational liberty and the right to a specific job. "It stretches the concept too far to suggest that a person is deprived of 'liberty' when he simply is not rehired in one job but remains as free as before to seek another." Roth, 408 U.S. at 575, 92 S.Ct. at 2708. It is the liberty to pursue a calling or occupation, and not the right to a specific job, that is secured by the Fourteenth Amendment. Lawson, 725 F.2d at 1138; Falk, 818 F.2d at 1344.

    Wroblewski argues that the City's policy prevented potential marina operators from hiring him and thus excluded him from his chosen area of work. Wroblewski's exclusion does initially appear to be more than displacement from "a specific job," such as that considered in Yatvin v. Madison Metropolitan School Dist., 840 F.2d 412, 417 (7th Cir.1988). As alleged, the City effectively prevented Wroblewski from obtaining any potential employment or subcontracting work in connection with the City's marina. Yet the sphere from which Wroblewski was excluded cannot properly be called an "occupation," like the practice of law. See Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957). We have declared that "being a police officer is an occupation; being a police lieutenant is not. Being a psychologist is an occupation; being a member of a hospital's medical staff is not." Falk, 818 F.2d at 1344. While it is not clear what Wroblewski's claimed occupation or calling is, it cannot be "operating the Washburn

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    marina facility": that is much closer to a specific job than an occupation. Considered by itself, the City's exclusionary policy, as alleged in Wroblewski's complaint, does not rise to a deprivation of occupational liberty.

    But Wroblewski's claim quickly becomes more complex. He argues that the City's exclusionary policy toward him was accompanied by defamation, and that the City's actions considered together constitute a deprivation of liberty. The Supreme Court held in Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), that mere defamation by public officials does not deprive the victim of liberty or property. Yet defamation that is incident to the government's refusal to reemploy an individual can implicate a liberty interest. Perry v. F.B.I., 781 F.2d 1294, 1300 (7th Cir.) (en banc), cert. denied, 479 U.S. 814, 107 S.Ct. 67, 93 L.Ed.2d 25 (1986) (citing Munson v. Friske, 754 F.2d 683, 693 (7th Cir.1985) (citing Roth, 408 U.S. at 573, 92 S.Ct. at 2707)). In such circumstances a...

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