Glatt v. Chicago Park Dist.

• Decision Date: 09 July 1996
• Docket Number: No. 95-2932,95-2932
• Citation: 87 F.3d 190
• Parties: Frank H. GLATT, Plaintiff-Appellant, v. CHICAGO PARK DISTRICT, Jim Halpern, and Robert Nelson, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 190

87 F.3d 190

34 Fed.R.Serv.3d 1500

Frank H. GLATT, Plaintiff-Appellant, v. CHICAGO PARK DISTRICT, Jim Halpern, and Robert Nelson,

Defendants-Appellees.

No. 95-2932.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 27, 1996.

Decided June 17, 1996.

Rehearing Denied July 9, 1996.

Kenneth N. Flaxman (argued), Chicago, IL, for plaintiff-appellant.

Kathleen M. McCabe, Cassiday, Schade & Gloor, Chicago, IL, Nelson A. Brown, Jr. (argued), Chicago, IL, for defendant-appellee.

Before POSNER, Chief Judge, and BAUER and EVANS, Circuit Judges.

POSNER, Chief Judge.

Frank Glatt, the owner of a 40-foot yacht, was distressed when the Chicago Park District, the owner of Diversey Harbor in Chicago, reassigned him from slip D19 in the harbor to slip D5. So, since this is America, he brought suit against the Park District and two of its employees under 42 U.S.C. § 1983, claiming that the defendants had violated his constitutional rights. His principal claim is that he had a property right in D19, within the meaning of the due process clause of the Fourteenth Amendment, which the defendants deprived him of without due process of law. The district judge dismissed this claim on the pleadings because he thought that the Chicago Park District Code, in ch. 8, § C, makes clear that the holder of a harbor permit, even though it is called a "permanent" permit, as was Glatt's, does not have an entitlement to a specific slip. The Code does say that "the renewed permit ordinarily will be ..., if a permanent mooring permit, for the permittee's prior assigned mooring." But in the word "ordinarily" we have our first hint that the right to the same slip may be highly qualified. And this is confirmed by the further provision that the Marine Director "may change the permittee's assigned harbor and/or mooring if, in the exercise of his/her discretion, he/she determines that such change is needed because of efficiency, safety, construction, repair, or other reasonable circumstances, including but not limited to water level or lake bed changes."

All property rights are qualified--by the police power, the power of eminent domain, the taxing power, and much else besides. But at some point the qualifications become so numerous and open-ended, the "right" such a sieve, that the sense of entitlement evanesces. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972); Cushing v. City of Chicago, 3 F.3d 1156, 1161 (7th Cir.1993); Yatvin v. Madison Metropolitan School District, 840 F.2d 412, 417 (7th Cir.1988); Reed v. Village of Shorewood, 704 F.2d 943, 948 (7th Cir.1983); Christ Gatzonis Electrical Contractor, Inc. v. New York City School Construction Authority, 23 F.3d 636, 641 (2d Cir.1994). That is the case here. The Marine Director is given uncabined discretion to change a permit holder's harbor or slip whenever the director thinks that the change is necessary because of "efficiency," whatever that means in this context. Suppose you owned a mobile home that was parked in a space in a trailer park, and the park's owner reserved the right to move the home to another space if he determined in the exercise of his discretion that the move was necessary because of efficiency, safety, construction, repair, or other reasonable circumstance. Would you think you had an entitlement to retain his space? You might conceivably (though we think this improbable) have a contractual right, because the discretion of the park's owner, like that of the Marine Director here, is not left completely at large but is to be exercised with reference to particular conditions, although whether the parties would intend that exercise to be subject to further review is highly doubtful. But you would not have that solider confidence in being able to remain that goes by the name of having an entitlement or property right. The words "property" and "entitlement" connote an interest that is securely, though not absolutely, the holder's; see, besides the cases cited earlier, Bayview-Lofberg's, Inc. v. City of Milwaukee, 905 F.2d 142, 145-46 (7th Cir.1990); Cornelius v. LaCroix, 838 F.2d 207, 210 (7th Cir.1988); Brown v. Brienen, 722 F.2d 360, 364-65 (7th Cir.1983); San Bernardino Physicians' Services Medical Group, Inc. v. County of San Bernardino, 825 F.2d 1404, 1408-09 (9th Cir.1987). The conditions that the Chicago Park District Code placed on Glatt's retention of slip D19 were too many and vague to allow him to have a secure expectation of continued use.

Thus far we have assumed that any substantive entitlement is a property right for purposes of the Fourteenth Amendment. That is the tendency of the cases, e.g., Chaney v. Suburban Bus Division, 52 F.3d 623, 627 (7th Cir.1995); Mid-American Waste Systems, Inc. v. City of Gary, 49 F.3d 286, 289-90 (7th Cir.1995); Cassidy v. Hawaii, 915 F.2d 528, 530 (9th Cir.1990), and has the advantage of simplicity; but there is enough play in the constitutional joints to avoid a rigid equating of the two concepts. Not all contractual entitlements, even of a substantive character, rise to the level of constitutional property. Swick v. City of Chicago, 11 F.3d 85, 87-88 (7th Cir.1993); Yatvin v. Madison Metropolitan School District, supra, 840 F.2d at 417; Brown v. Brienen supra, 722 F.2d at 364-65; Local 342 v. Town Board of Town of Huntington, 31 F.3d 1191, 1195-96 (2d Cir.1994); Martz v. Incorporated Village of Valley Stream, 22 F.3d 26, 31 (2d Cir.1994); San Bernardino Physicians' Services Medical Group, Inc. v. County of San Bernardino, supra, 825 F.2d at 1408-09; cf. Horwitz-Matthews, Inc. v. City of Chicago, 78 F.3d 1248, 1250 (7th Cir.1996). At argument Glatt's lawyer acknowledged doubt that the Fourteenth Amendment protects in the name of property the right to have one's vanity license plate renewed with the identical letters, even if the licensing authority has neglected to avoid using words of entitlement. If Diversey Harbor operates a bar for yachtsmen, we do not think that Mr. Glatt could claim a property right in a particular stool even if the manager of the bar promised him that it was his forever and had apparent or even actual authority to bind his employer by such a promise. The Constitution is trivialized, the majesty of constitutional law degraded, when the concept of property is allowed to expand to a point at which irascible rich men can use it to lever petty disputes with local officials (Mr. Glatt is worried lest underwater weeds at D5 foul the propellers of his yacht) into federal cases. The Marine Director did not kick Glatt's yacht out of Chicago, to make it The Flying Dutchman of Lake Michigan, or even out of Diversey Harbor, but merely transferred it from one boat slip to another nearby. To deem such a transfer a deprivation of property under the due process clause is constitutional hyperbole. Swick v. City of Chicago, 11 F.3d 85, 87 (7th Cir.1993); Downtown Auto Parks, Inc. v. City of Milwaukee, 938 F.2d 705, 710 (7th Cir.1991); Brown v. Brienen, supra, 722 F.2d at 364. We hold that a rented boat slip is not property, and the reassigning of the renter to another slip is not a deprivation of property, within the meaning of the due process clause.

Glatt's secondary, although actually somewhat more substantial, claim is that the district judge should have allowed him to amend his complaint to add a charge of retaliation for the filing of the original complaint. The original complaint had been filed on September 2, 1993, the day after an internal investigation by the Park District had found colorable merit in Glatt's claim not to have received timely notice of the...