Lipinski v. Dietrich

• Decision Date: 16 January 1984
• Docket Number: Civ. No. H82-168.
• Citation: 578 F. Supp. 235
• Parties: Thomas F. LIPINSKI, d/b/a Lipinski's Automotive Garage, Plaintiff, v. Fritz DIETRICH, et al., Defendants.
• Court: U.S. District Court — Northern District of Indiana

578 F. Supp. 235

Thomas F. LIPINSKI, d/b/a Lipinski's Automotive Garage, Plaintiff, v. Fritz DIETRICH, et al., Defendants.

Civ. No. H82-168.

United States District Court, N.D. Indiana, Hammond Division.

January 16, 1984.

George R. Livarchik, Chesterton, Ind., for plaintiff.

L. Charles Lukmann, III, Harris & Welsh, Chesterton, Ind., for defendants.

ORDER

MOODY, District Judge.

This matter is before the Court on the Plaintiff's Motion for Partial Summary Judgment as to Liability, filed June 11, 1982, Plaintiff's Second Motion for Summary Judgment, filed March 8, 1983, and on Defendant's Motion to Dismiss, filed May 17, 1982 and renewed on April 8, 1983. The Defendant's Motion to Dismiss is GRANTED in part, the Plaintiff's First Motion for Partial Summary Judgment as to Liability is DENIED, and a decision on the issues raised in Plaintiff's Second Motion for Summary Judgment is RESERVED. The parties are ORDERED to submit Memoranda of Law to the Court on or before February 3, 1984, discussing the possibility that the defendant's actions denied plaintiff's fundamental right to free speech in violation of the Equal Protection Clause of the Fourteenth Amendment and/or Indiana Code § 36-5-4-11.

BACKGROUND

The Court's findings of fact are set out in the Order of May 21, 1982 which granted a preliminary injunction. Briefly, Plaintiff Lipinski owns and operates a towing service in Chesterton, Indiana. Defendant Killosky, with the Board of Metropolitan Police Commissioners, maintains a list of towing operators who may be called on a rotating basis by the Chesterton Police Department to tow abandoned or disabled vehicles. There are no written prerequisites for inclusion on the list, but it is understood that only insured services available on 24-hour call may apply for placement on the towing list. At all times relevant to this litigation, plaintiff's towing service was insured and available on 24-hour call.

Plaintiff's towing service appeared on the list for approximately ten years prior to July 9, 1981. On July 9, 1981, plaintiff's name was removed from the towing list by defendant Killosky acting in his capacity as Chief of the Chesterton Police Department. The plaintiff received no notice and had no opportunity for a hearing prior to removal. By letter of July 9, 1981, defendant Killosky advised plaintiff that the removal was triggered by his "failure to cooperate with the Chesterton Police Department upon investigation of a case." This was the sole reason for plaintiff's removal. The removal had no relation to the quality of plaintiff's towing service. See Order of May 21, 1982 at paras. 20, 21.

The complaint alleges that plaintiff's position on the towing list amounted to a license of sorts and that his summary removal from the list was beyond the scope of defendants' authority in violation of IC § 36-5-4-11.¹ The plaintiff further claims that the towing list itself violates IC § 36-1-3-6² concerning the exercise of municipal regulatory power, IC § 9-4-1125(c)³ regarding ordinances limiting the use of trucks and commercial vehicles on town highways, and the Chesterton Police Department Rule # 20.⁴ Finally, the plaintiff purports to bring this suit under the Fifth and Fourteenth Amendments to the United States Constitution and under Title 28 U.S.C. § 1343.

The defendants counter that the departmental practice of maintaining a towing list is in compliance with I.C. § 36-8-3-10 and § 36-8-9-6, which establish that one duty of the Chesterton Police Department is to remove all nuisances in public ways. See Defendants' Legal Memorandum in Support of Defendants' Motion to Dismiss.

Despite the plaintiff's various claims, debate has almost solely concerned the plaintiff's property right in his place on the towing list. The Court is as much to blame as the parties for this single-mindedness—the property issue was the principal basis for the Order of May 21, 1982, granting a preliminary injunction. In retrospect, our blind infatuation with plaintiff's constitutional property claim was misplaced. First, "the great gravity and delicacy of constitutional decision-making counsels that federal courts abjure constitutional rulings where a `dispositive nonconstitutional ground is available.'" Ruslan Shipping Corp. v. Coscol Petroleum Corp., 635 F.2d 648, 650 (7th Cir.1980) quoting Hagans v. Lavine, 415 U.S. 528, 547, 94 S.Ct. 1372, 1384, 39 L.Ed.2d 577 (1974). See also Transport Motor Express, Inc. v. Central States Pension Fund, 724 F.2d 575 at 577 (7th Cir.1983). We must at least test plaintiff's other claims before relying on the constitutional issue. Second, the affidavits, memoranda of law, depositions, and hearing for preliminary injunction before this Court suggest that the plaintiff has lost no property right through the defendants' actions. We will consider this second observation before discussing the legal theory which may ultimately decide this case.

Due Process: Property

A property interest for purposes of due process was defined by the Supreme Court in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548: To have a property interest in a benefit a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined.

Id. at 577, 92 S.Ct. at 2709.

The existence of such a property interest is determined by state law. Roth, 408 U.S. at 577, 92 S.Ct. at 2709. Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976). A property interest under state law need not arise from statutory or judicial sources, but may originate in "rules or mutually explicit understandings that support the plaintiff's claim of entitlement to the benefit." Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972).

In accordance with these decisions, a state court in Indiana has ruled that for a property interest to arise, "state law must affirmatively create an expectation that a particular employment relationship will continue unless and until certain defined events occur." Morris v. City of Kokomo, 178 Ind.App. 56, 381 N.E.2d 510, 514 (1978). See also Lawson v. Sheriff, 537 F.Supp. 918 (N.D.Ind.1982). The plaintiff has cited no state or municipal law which affirmatively creates an expectation in continued presence on an informal towing list or a license within the meaning of I.C. XX-X-X-XX.

The plaintiff also contends that an implied contract arose from his inclusion on the list and his continuing reliance on police business. But aside from duration, there is little to support the existence of an implied contract.⁵ Plaintiff's name was on the list and plaintiff responded to the calls he received. But as was indicated at the hearing on preliminary injunction, neither the tower nor the police demanded any assurances regarding the list's continued existence or the continued availability of the tower's services. Plaintiff did not expand his business in reliance on the calls referred from the police. Even if a contract can be implied in these circumstances, it is unenforceable in Indiana law. It is impossible to ascertain what the terms of an implied contract might be, and there are too few indicia of agreement to imply the existence of a contractual relationship between the parties.

Further, in Indiana,

... in the absence of a promise on the part of the employer that the employment should continue for a period of time that is either definite or capable of determination, the employment relationship is terminable at the will of the employer ... there being no binding promise on the part of the employee that he would continue in the employment, it must also be regarded as terminable at his the employer's discretion as well.

Shaw v. S.S. Kresge Co., 167 Ind.App. 1, 328 N.E.2d 775, 779 (1975) (citations omitted).

These principles also govern contracts for public employment. McQueeney v. Glenn, 400 N.E.2d 806 (Ind.App.1980). If a contract were to be implied between Mr. Lipinski and the Chesterton Police, it would be terminable at the will of either.

Finally, there is no mutually explicit understanding between the plaintiff and defendant in this case. A number of factors point to an implicit acceptance of a continuing relationship: the use of the tower's services over a ten year period, the absence of written requirements, the mutuality of the arrangement. But without the explicit representations required by both Roth and Perry, there is no protectible property interest. There can be no deprivation of property "unless the state earlier conferred upon the plaintiff a right to continued employment by telling him, in a manner that made it reasonable for the employee to expect the state to stand behind its word, that it would continue to employ him." Smith v. Board of Education, 708 F.2d 258, 261 (7th Cir.1983). See Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699; cf. Hewitt v. Helms, ___ U.S. ____, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983).

Alternatives to Property

The plaintiff presents several alternatives to his property claim. Plaintiff argues a violation of Indiana Code § 9-4-1-125(c). That provision, however, is directed at traffic regulations rather than police practices. See generally Holt v. Brazil, 205 Ind. 710, 185 N.E. 904 (1929); McAllister v. Butler, 139 Ind.App. 613, 220 N.E.2d 540 (1966). The Chesterton Police Department Rule # 20 deals specifically with towers, but ordinances or rules do not have the same force as a law. Instead, the question is one of power. If the state conferred on the police or municipal corporation the power to enforce Rule # 20, then "the ... authorities are necessarily clothed with reasonable discretion to determine the manner in which the act shall be performed; and all reasonable methods of...