Mustfov v. Rice

• Decision Date: 30 March 1987
• Docket Number: No. 86 C 3905.,86 C 3905.
• Parties: Jusein MUSTFOV, Ray Mohyde, Henry Sammarco, Robert C. Britt, Barry Weitzenfeld, Dennis Becker, Miodrag Stojadinovich, Dragan Petrovic, Randall Schlicter, John A. Lindsey, Jim Guthrie, Lawrence Frowick, Frank Barberis, Neb Tarailo, Wilfred Brodeur, Donald Gardella, John Miller, Ivan Nikolov, Ronald Courtney and Ace Limousine, Inc., Plaintiffs, v. Fred RICE, Superintendent of Chicago Police Department; Paul Jankowski, Commander; Jesse Madison, Vehicle Commissioner Consumer Service Department; Tony Olivieri, Deputy Commissioner; Jesse Blackman, Deputy Commissioner; and Dan Welter, Chicago Corporation Counsel, individually and in their official capacities; and the City of Chicago, Defendants.
• Court: U.S. District Court — Northern District of Illinois

663 F. Supp. 1255

Jusein MUSTFOV, Ray Mohyde, Henry Sammarco, Robert C. Britt, Barry Weitzenfeld, Dennis Becker, Miodrag Stojadinovich, Dragan Petrovic, Randall Schlicter, John A. Lindsey, Jim Guthrie, Lawrence Frowick, Frank Barberis, Neb Tarailo, Wilfred Brodeur, Donald Gardella, John Miller, Ivan Nikolov, Ronald Courtney and Ace Limousine, Inc., Plaintiffs, v. Fred RICE, Superintendent of Chicago Police Department; Paul Jankowski, Commander; Jesse Madison, Vehicle Commissioner Consumer Service Department; Tony Olivieri, Deputy Commissioner; Jesse Blackman, Deputy Commissioner; and Dan Welter, Chicago Corporation Counsel, individually and in their official capacities; and the City of Chicago, Defendants.

No. 86 C 3905.

United States District Court, N.D. Illinois, E.D.

March 30, 1987.

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Michael Smith, Schaumburg, Ill., for plaintiffs.

Robert W. Fioretti, Asst. Corp. Counsel, Albert C. Maule, Hopkins & Sutter, Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

This action has been brought by nineteen Illinois livery and taxicab drivers ("Drivers") and Ace Limousine, Inc. ("Ace"), an Illinois limousine service company, against the City of Chicago and six city officials individually and in their official capacities ("City Defendants") under section 1983 of the Civil Rights Act of 1871, 42 U.S.C. § 1983 (1982) ("1983"), and the Sherman Act, §§ 1-2, 15 U.S.C. §§ 1-2 (1982). Currently before the Court is the City Defendant's motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1) & (6). For the reasons noted below, we grant that motion in part and deny it in part.¹

Plaintiffs include livery or taxicab drivers either licensed by the City or licensed by the State of Illinois to drive public passenger livery vehicles. Two additional plaintiffs are licensed suburban taxicab drivers. A corporate plaintiff, Ace, is an Illinois corporation which provides livery service to clients to Chicago and the suburban area. Plaintiffs have raised a number of constitutional challenges to the enforcement of Chapter 28 of the Chicago Municipal Code, "Public Passenger Vehicles." These claims arise because of the manner the ordinances are allegedly enforced at the O'Hare and Midway Airports. Briefly, plaintiffs contend that they are engaged in legitimate business at the O'Hare Airport but due to increased enforcement of the solicitation ordinances they are no longer able to conduct their business. While plaintiffs attack the solicitation prohibition of nonprearranged fares at the airport, they also contend that they have been prevented from picking up their prearranged fares. It is clear that the ordinances do not prohibit plaintiffs from picking up their prearranged fares. Plaintiffs also seek to test the validity of an arrangement that the City of Chicago has made with Continental Air Transport Company ("Continental") and Airways Rental. The alleged agreement allows Continental to park in designated areas near Chicago airport terminals which are apparently not available to the general public, and Continental is allowed to maintain a booth within the O'Hare Airport in order to solicit travelers for transportation to the City of Chicago and the suburban area. Airways Rental, a limousine service, is also allowed to maintain a booth inside of the O'Hare terminal, apparently to solicit travelers as well.

I. Preliminary Matters

Although impaired by lack of clarity, plaintiffs' complaint raises challenges to the ordinances, the enforcement of the ordinances and the exclusive arrangements based on due process, Fourth Amendment, equal protection, First Amendment, antitrust, commerce clause and contract clause grounds. We will address each ground and additional facts relating to that ground separately. As an initial matter, City Defendants raise three grounds which they contend bar our inquiry altogether. City Defendants contend that we have no subject matter jurisdiction under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny; that plaintiffs' claims are barred by the doctrine of res judicata; and that plaintiffs' claims are barred by the statute of limitations.

A. Younger Abstention

City Defendants argue that under Younger progeny Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), the plaintiffs must have raised any challenges they may have had to the constitutionality of their arrest and prosecution under the ordinances in the state court proceedings where their guilt was determined before they can proceed in federal court. There is no allegation that there are any pending state court proceedings in this case. Nor is there any allegation that plaintiffs raised any constitutional defenses to their convictions. In Huffman and in Foster v. Zeeko, 540 F.2d 1310 (7th Cir.1976), another case cited by City Defendants, the constitutional claims that were held later barred from being raised in federal court, were first raised in the state court proceeding. In each case, the plaintiffs chose not to appeal the state trial court's rejection of the constitutional claims, and instead proceeded directly to federal court. We do not think that these cases stand for the proposition that unraised constitutional challenges are forever barred under the Younger abstention doctrine.

Nevertheless, when a genuine threat of state prosecution exists, a litigant is entitled to resort to a federal forum to seek redress for an alleged deprivation of federal rights under 42 U.S.C. § 1983, Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974), and provided the plaintiff does not seek to annul the results of a previous state trial, but seeks prospective relief from further prosecution under a statute alleged to violate constitutional rights, failure to seek state appellate review of criminal convictions does not bar relief in federal court. Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977) (distinguishing Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975)).

Thus, to the extent that plaintiffs seek injunctive and declaratory relief, Huffman would not apply in this case even if Huffman did apply to unraised constitutional arguments.² If Huffman did bar unraised constitutional challenges, then only the plaintiffs' claims for damages for being arrested and convicted under an unconstitutional ordinance would be barred. Because under Wooley a federal court may still grant injunctive relief against the enforcement of a state statute or city ordinance through threatened criminal proceedings where the federal plaintiff has been convicted several times for the same conduct as long as the federal plaintiff does not seek in any way to undo the results of the unappealed convictions. S. Nahmod, Civil Rights and Civil Liberties Litigation § 5.13 n. 161 (2d ed. 1986). Plaintiff drivers allege they have been arrested for, and found guilty of, violating the ordinances. Although they have not alleged repeated convictions, we find the allegations on the whole imply that they have been arrested repeatedly and are threatened with further arrests. Additionally, only a few of the plaintiffs' complaints relate to the convictions themselves. The majority of the claims relate to the procedures under which the ordinances are enforced, the exclusive arrangement with Continental and Airways Rental and the impact of the ordinances on plaintiffs' contracts and interstate commerce. Even if plaintiffs had not been arrested and convicted under the ordinances, we find that allegations in the complaint are sufficient to give plaintiffs standing to seek declaratory and injunctive relief.

B. Res Judicata

City Defendants next argue that all of plaintiffs' claims are barred by the doctrine of res judicata. Because we are to give the same preclusive effect to state court judgments that those judgments would be given in the courts of the states from which they emerged, Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985), we must look to Illinois law to determine if any of plaintiffs' claims are barred under the doctrine of res judicata, or claim preclusion. Illinois follows the traditional res judicata rule:

A final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action.... The doctrine of res judicata, in all cases where the second suit is upon the same cause of action and between the same parties or their privies as the former action, extends not only to the questions actually litigated and decided, but to all grounds of recovery or defense which might have been presented.

Kirk v. Board of Education, 811 F.2d 347, 352 (7th Cir.1987) (citing People v. Kidd, 398 Ill. 405, 75 N.E.2d 851, 853-54 (1947)).

Thus, the doctrine of res judicata will bar all grounds of recovery or defenses that might have been presented. Because the earlier state actions in this case were either criminal or quasi-criminal and not civil actions, we are not concerned with claims that the plaintiffs might have presented, but rather with defenses to their prosecution that they might have presented. Plaintiffs do not specifically identify the grounds under which they were convicted, stating only that "all of the individual Plaintiffs have been arrested for, and found guilty of, violating the respective sections of Chapter 28 of the Chicago Municipal Code." (Complaint ¶ 7). Generally, affirmative defenses should be raised in defendant's answer and resolved by way of a motion for summary judgment. 5 C. Wright & A. Miller, Federal Practice & Procedure § 1277 (1969). If, however, the facts raising the affirmative defense appear on the face of the complaint, then it...