Freitag v. Carter

• Decision Date: 10 December 1973
• Docket Number: No. 72-1679.,72-1679.
• Citation: 489 F.2d 1377
• Parties: Victor FREITAG, Individually and on behalf of others similarly situated, Plaintiff-Appellee, v. James Y. CARTER, Individually and in his official capacity as Commissioner of the Public Vehicle License Commission of the City of Chicago, and the City of Chicago, a municipal corporation, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

489 F.2d 1377 (1973)

Victor FREITAG, Individually and on behalf of others similarly situated, Plaintiff-Appellee, v. James Y. CARTER, Individually and in his official capacity as Commissioner of the Public Vehicle License Commission of the City of Chicago, and the City of Chicago, a municipal corporation, Defendants-Appellants.

No. 72-1679.

United States Court of Appeals, Seventh Circuit.

Argued May 31, 1973.

Decided December 10, 1973.

Richard L. Curry, Corp. Counsel, William R. Quinlan, Asst. Corp. Counsel, Chicago, Ill., for defendants-appellants.

Thomas P. Stillman, Chicago, Ill., for plaintiff-appellee.

Before PELL and STEVENS, Circuit Judges, and REYNOLDS,^* District Judge.

PELL, Circuit Judge.

After the Public Vehicle License Commission of the City of Chicago allegedly denied his application for a chauffeur's license, Victor Freitag filed a class action against the head of the Commission and the City of Chicago challenging the constitutionality of the City's licensing ordinance.¹ The complaint, grounded on 42 U.S.C. § 1983, alleged that the ordinance failed "to provide for notice of reasons for denial of a license and for a hearing." In addition to a declaration of the ordinance's unconstitutionality, Freitag sought an injunction and, for himself, $25,000 damages.

Both plaintiff and defendants moved for summary judgment. While these motions were pending, the Commissioner issued the license to Freitag.² The district court declined to hold that the case was mooted and granted Freitag's motion for summary judgment.³ The court concluded (1) the ordinance was invalid on its face, and (2) plaintiff had been denied due process. The defendants appeal, raising four issues: (1) the judicial remedy of mandamus was readily available against an improper denial of a license; (2) whether Freitag, in fact, had been denied due process by the defendants; (3) whether the case has been mooted; and (4) if the constitutionality issue is not moot, whether a licensing ordinance, to be valid, need expressly provide for notice and hearing.

I

On January 4, 1971, Freitag, wishing to drive a taxicab within the City of Chicago, applied to defendant Carter, the Commissioner of the Public Vehicle License Commission, for a public chauffeur's license which Chicago cab drivers are required to have.

While investigating the application, Carter learned that Freitag had previously been a patient in a state mental hospital.⁴ Section 28.1-3 of Chapter 28.1 of the Municipal Code lists lack of "infirmity . . . of mind" as a pre-requisite for the issuance of a public chauffeur's license. In a letter to Freitag dated January 19, 1971, Carter denied the application. However, the letter also stated, "If you wish to have this denial reviewed, please call at this office. . . ."

Freitag immediately asked for such a review and, on January 21, 1971, the Commissioner, after obtaining Freitag's permission, wrote the state mental hospital requesting information regarding plaintiff's condition at the time of his discharge from the institution and information pertinent to Freitag's ability to drive a cab. In response, the Administrative Physician at the hospital gave a brief history of Freitag's connections with the hospital,⁵ described his mental condition at the time of his hospitalization, and stated that the hospital had had no contact with Freitag since October 1957. The record does not reveal that defendant Carter showed plaintiff the Administrative Physician's letter or the hospital records.

Upon receipt of the letter, Carter's office forwarded it to the Medical Section of the Chicago Police Department, which, on February 5, 1971, indicated that Freitag might be a "bad risk." This evaluation apparently was based solely on the fourteen-year-old information, for no expert assessed Freitag's mental condition as of 1971. If so, it would appear to reflect an archaic attitude in the field of mental health. Indeed, the defendants never gave plaintiff any mental tests nor were there facts before the Commissioner to indicate any present questionable mental status.

Receiving no word from Carter on the reconsideration, Freitag in late February 1971 telephoned the Public Vehicle License Commission. Freitag claims that he was told his application had been denied by the Commission's psychiatrist.⁶ He asked for an appointment to see Carter.

On February 22, 1971, the two met in Carter's office. According to Freitag, Carter stated that the Commission doctor had told him to deny the license. Carter supposedly then refused to explain why the doctor had so advised. According to the affidavit Carter made for the defendants' summary judgment motion, Carter never announced a final denial of plaintiff's application. The Commissioner maintains that he had merely indicated to Freitag that further investigation would be necessary.

After this conference, Freitag sought legal aid. His lawyer wrote Carter several letters and interviewed him in an effort to secure Freitag a license. On August 17, 1971, Freitag filed the present lawsuit.

II

Defendants contend that because of the "ready availability of the traditional mandamus procedure, which in Illinois has long been regularly employed to compel the issuance of licenses improperly withheld," Freitag has "no justifiable claim of denial of due process to assert in a federal court." However, the defendants deny that they are thereby arguing that an applicant must resort to the state mandamus remedy before proceeding in the federal courts to assert or preserve a claim of denial of due process.

The heart of Freitag's complaint is the demand for a formal notice of reasons for the denial and a hearing at which he may cross-examine witnesses and present evidence on his behalf. The complaint does not request the immediate issuance of a chauffeur's license, although it does include a prayer for $25,000 damages. We fail to understand why the existence of a state mandamus procedure forecloses Freitag from seeking relief in the federal courts. Perhaps the defendants are really arguing that the license ordinance should be read in conjunction with the state mandamus provisions in order to "save" the ordinance. Even if that is the proper way to construe the ordinance, that argument does not go to the availability of the federal forum. The mandamus contention, to the extent that the existence of this remedy is supposed to mean that the ordinance considered in the mandamus-availability context therefore provided due process, would not be sufficient to override an actual denial of due process if such is the fact.

III

The defendants contend that the district court improperly granted summary judgment on the issue of whether Freitag was in fact denied due process. They argue that plaintiff clearly was accorded due process or, alternatively, that "there were, at least, disputed material issues of fact . . . ." We disagree. In our opinion there was "no genuine issue as to any material fact and . . . the moving party was entitled to a judgment as a matter of law." Rule 56, Fed.R.Civ.P.

First, contrary to the defendants' assertion, Commissioner Carter did issue a "final" denial of Freitag's application for a public chauffeur's license. His letter of January 19th stated, "This is to advise you that your application . . . has been denied." Later, after Freitag's legal representative demanded that Freitag be issued a license, Carter wrote the City's Corporation Counsel seeking advice:

"When Freitag\'s fingerprints were returned from the FBI in Washington, it showed that he had been a patient at the Manteno State Hospital. . . . He agreed to sign a release letter to the hospital . . . . We then presented the hospital\'s information to the Medical Section of the Chicago Police Department for their opinion which was that Mr. Freitag would be a `bad risk.\' We then notified Mr. Freitag that his application for a public chauffeur\'s license was denied." Emphasis added.

The letter then describes Carter's meeting on May 7, 1971, with Freitag's legal representative: "No decision was reached other than the license was denied. . . ." The representative's recollection of the meeting corroborates this statement: "When I asked Mr. Carter the date he denied Mr. Freitag's license, he said that it was not noted in Freitag's file but the date of denial was within a week after receiving the letter of January 29 from Manteno."

The only documents in the record that suggest Carter never made a final denial are Carter's affidavits attached to the defendants' summary judgment motion and answer. In his second affidavit, Carter claimed:

"Although both Mr. Freitag and . . . an employee of his legal counsel . . . misunderstood my actions and language and interpreted my failure to immediately issue a license to Freitag as a final denial of the issuance of the same, that was never my intention. Whether or not I actually stated that the failure to immediately issue a license to Freitag was preliminary, final, or otherwise, I intended that it be merely preliminary and assumed Freitag and his legal representative had understood it as such. . . . I did not tell Freitag that a final denial had been decided upon regarding his license nor did I authorize anyone else to make such a representation to him. . . ." Emphasis added.

The firm characterization of lack of final denial is undermined by the unequivocal nature of the characterization of the action when it was actually taken. Under these circumstances, Carter's speculations and conclusionary statements concerning his intentions and words enunciated six months after the fact raise no genuine material issue of fact.

Second, the summary judgment documents reveal that the defendants failed to accord Freitag due process when denying him a public chauffeur's license. A governmental licensing body which judges the fitness of an applicant must afford that applicant adequate notice and a hearing. See, e. g., Willner v....