Mirshak v. Joyce
| Decision Date | 14 January 1987 |
| Docket Number | No. 82 C 6846.,82 C 6846. |
| Citation | 652 F. Supp. 359 |
| Parties | William J. MIRSHAK, Plaintiff, v. Jeremiah JOYCE, Vincent Gavin, William Dart, Julia B. Girsch, Thomas J. Fox and Theresa Fox, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
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William Kurnik, Kurnik and Cipolla, Arlington Heights, Ill., Ira Gould, Norman B. Berger, Lori A. Schaffel, Holleb & Coff, Ltd., Chicago, Ill., for plaintiff.
Thomas G. Morrissey, William J. Harte, Mary E. Rosen, Chicago, Ill., for defendants.
The plaintiff William J. Mirshak ("plaintiff") has filed a four-count amended complaint against the defendants Jeremiah Joyce ("Joyce"), Vincent Gavin ("Gavin"), William Dart ("Dart"), Julia B. Girsch ("Girsch"), Thomas J. Fox and Theresa Fox ("Foxes"). In Count I of the amended complaint, the plaintiff alleges that Joyce, acting under the color of state law, deprived the plaintiff of his fourteenth amendment rights in violation of 42 U.S.C. § 1983. In Count II, the plaintiff alleges another cause of action based on Section 1983 against Gavin. In Count III, the plaintiff alleges that all of the defendants conspired to deprive the plaintiff of his constitutional rights in violation of Section 1983. Count IV is a pendent state-claim, and in it the plaintiff alleges that Joyce made a number of defamatory statements concerning the plaintiff.
In this opinion, the court addresses motions that are pending. Before the court addresses those motions, a brief summary of the facts as alleged in the plaintiff's amended complaint is in order.
At the times relevant to the amended complaint, the plaintiff was engaged in the retail sales of alcohol as a restaurant and lounge owner in the community of Beverly in the 19th Ward of Chicago, Illinois. Specifically, the plaintiff owned and operated two lounges — the Marquis Restaurant ("The Marquis"), which opened in 1972, and The Keyes, which opened in 1978.1 In February of 1977, when the plaintiff owned and operated only The Marquis, he began to negotiate for the purchase of the property where The Keyes now stands. In April of 1977, members of the Building Commission and members of the Liquor License Control Commission ("Liquor Commission") advised the plaintiff that the property had the requisite zoning for a restaurant, lounge and nightclub and was otherwise appropriate for such an establishment. Based on that advice, the plaintiff purchased the property.
In 1977, Joyce was the alderman of the 19th Ward.2 The Foxes then owned and operated a restaurant within one block of The Marquis and The Keyes. On June 30, 1977, Thomas J. Fox told the plaintiff that Fox was against the opening of The Keyes, and that if Fox told Joyce to stop the plaintiff from opening The Keyes, the plaintiff would never get the place opened. Fox then told Joyce of his opposition to the opening of The Keyes.
In 1977, Gavin, a sergeant in the Chicago Police Department, was assigned to the Liquor Commission. Gavin supervised the issuance, denial, suspension and revocation of liquor licenses in and for the City of Chicago. On July 1, 1977, Gavin caused a "stop" order to be placed on the plaintiff's name and the location of The Keyes in the files of the Liquor Commission. The stop order prevented the issuance of a liquor license for The Keyes until Gavin was willing to remove it. Gavin did this at the insistence of Joyce for reasons inconsistent with the Municipal Code of the City of Chicago governing the issuance of liquor licenses.
In February of 1978, when the remodeling of The Keyes was substantially completed, the plaintiff applied for a liquor license for The Keyes but was rejected due to the stop order. In March, 1978, Gavin refused to remove the stop order on The Keyes and threatened the plaintiff that he would close down The Keyes. On July 19, 1978, the plaintiff again applied for a liquor license and was rejected. When the plaintiff met with Gavin, Gavin told the plaintiff that Joyce and the Beverly Area Planning Association ("BAPA") did not want the plaintiff to open The Keyes.
On July 20, 1978, Joyce introduced an ordinance with the City Council to downzone an area surrounding The Keyes in order to keep the plaintiff from opening The Keyes.
On August 21, 1978, Joyce met with the plaintiff and told him that Joyce knew of the stop order. Joyce further told the plaintiff that Joyce would not allow him to own two bars in the 19th Ward and did not want him to open The Keyes. After the plaintiff left Joyce's office, Joyce met with Theresa Fox who urged Joyce to prevent The Keyes from opening.
On or about September 15, 1978, the plaintiff complained to Dart about the stop order. At that time, Dart was an attorney employed as an assistant corporation counsel of the City of Chicago. After subsequently telephoning Joyce and meeting with Gavin, Dart told the plaintiff that the plaintiff would have to get Joyce's approval if he wanted a liquor license for The Keyes.
Dart then arranged a meeting between the plaintiff and Joyce. At the meeting, Joyce told the plaintiff that Joyce would allow him to open The Keyes if the plaintiff agreed to operate The Keyes without a late-night license3 and close The Marquis, sell it, or lease it as a non-liquor serving establishment to the satisfaction of BAPA. Joyce threatened to send the police into The Marquis if the plaintiff did not close it, and directed the plaintiff to draft a letter regarding the agreement Joyce and the plaintiff had reached and deliver it to BAPA.
Consequently, on or about September 18, 1978, the plaintiff went to meet with Girsch, a BAPA staff person. Together they drafted a letter which reflected that The Marquis would close and not be sold or leased without the approval of BAPA. Girsch read the letter to Joyce over the telephone.
Joyce subsequently informed Dart of his agreement with the plaintiff and authorized Dart to issue the license. The plaintiff then closed The Marquis in October, 1978. Shortly thereafter, however, an officer from the Chicago Police Department Office of Professional Review instructed the plaintiff to reopen The Marquis, which the plaintiff did. As a result of the agreement reached with Joyce, the plaintiff sold The Marquis as a non-liquor establishment in January 1980. But for this agreement made at the insistence of Joyce, the plaintiff would have either sold The Marquis as a liquor establishment or not sold it at all. Also because of this agreement, the plaintiff refrained from applying for a late-night license for The Keyes until November of 1979.4
In the amended complaint, the plaintiff also alleges that, beginning in 1977 and continuing through 1985, Chicago police repeatedly subjected The Marquis and The Keyes to unnecessary raids during business hours. This was done at the direction of Joyce and Gavin initially to obtain the plaintiff's agreement and later to punish the plaintiff for continuing to operate The Marquis. Moreover, Joyce appeared at various meetings and made certain defamatory accusations regarding the plaintiff.
The defendants Joyce, the Foxes and Girsch separately move the court to grant them summary judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure. Summary judgment is appropriate only where the record shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R. Civ.P. 56(c). The party moving for summary judgment has the burden of establishing the lack of a genuine issue of material fact. Big O Tire Dealers, Inc. v. Big O Warehouse, 741 F.2d 160, 163 (7th Cir.1984). The court must view the evidence, and the reasonable inferences to be drawn from the evidence, in the light most favorable to the party opposing summary judgment. Id. Where the moving party fails to meet its strict burden of proof, the court cannot grant the motion for summary judgment. Id. Finally, according to the Supreme Court in Celotex Corp. v. Catrett, 477 U.S. ___, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986), the moving party may discharge his burden by showing that there is an absence of evidence to support the non-moving party's case.
In light of the foregoing principles, the court addresses each of the defendants' motions in turn.
Joyce moves this court for summary judgment on a number of different grounds. The court will treat each of his arguments separately.
In his motion for summary judgment, Joyce argues that, as the alderman of the 19th Ward from April, 1975 to February, 1979, he is entitled to both absolute and qualified immunity from damages liability under Section 1983. The plaintiff objects to this argument and claims that Joyce is not immune from liability for the acts alleged in the amended complaint.
The Speech and Debate Clause of the United States Constitution provides absolute immunity for members of Congress for acts which fall within the sphere of legislative activity. Eastland v. United States Serviceman's Fund, 421 U.S. 491, 501, 95 S.Ct. 1813, 1820, 44 L.Ed.2d 324 (1975). The clause insures "that legislators are not distracted from or hindered in the performance of their legislative tasks by being called into court to defend their actions." Powell v. McCormack, 395 U.S. 486, 505, 89 S.Ct. 1944, 1955, 23 L.Ed.2d 491 (1969). By its own terms, the speech and debate clause applies only to federal legislators. See U.S. Const. art. I, § 6. But the Supreme Court has found state and regional legislators to be immune from Section 1983 liability for acts taken within the sphere of legitimate legislative action. See Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 405, 99 S.Ct. 1171, 1179, 59 L.Ed.2d 401 (1979) (regional legislators); Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 788, 95 L.Ed. 1019 (1951) (state...
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