Roger Whitmore's Auto. v. Lake County, Il

Decision Date22 September 2005
Docket NumberNo. 04-1978.,No. 05-1033.,04-1978.,05-1033.
Citation424 F.3d 659
PartiesROGER WHITMORE'S AUTOMOTIVE SERVICES, INC., and Roger Whitmore, Plaintiffs-Appellants, v. LAKE COUNTY, ILLINOIS, Gary Del Re, Sheriff of Lake County, Gary Stryker, Undersheriff of Lake County, and Citizens to Elect Gary Del Re, Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Keevan D. Morgan, Morgan & Bley, Thomas A. Durkin (argued), Durkin & Roberts, Chicago, IL, for Plaintiffs-Appellants.

Daniel P. Field (argued), Daniel L. Jasica, Office of the State's Attorney of Lake

County, Waukegan, IL, for Defendants-Appellees.

Before BAUER, EASTERBROOK, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Towing operator Roger Whitmore and his company sued Gary Del Re, Gary Stryker, and others for violation of the Racketeer Influenced Corrupt Organization Act (RICO) and for retaliation based on constitutionally protected speech. The district court granted summary judgment to the remaining defendants on all counts and, later, granted motions for attorneys' fees and awarded costs. The plaintiffs appeal both the summary judgment and the award of fees. We affirm the order granting summary judgment on the merits. As to the award of fees, we affirm in part, reverse in part, and remand to the district court for further proceedings.

I. History

Large municipalities make extensive use of towing services to deal with stranded vehicles, accidents, and the like. The towing fees can be quite expensive for motorists and profitable to the companies furnishing the tow trucks. Since at least 1968, the Lake County, Illinois, Sheriff's Department has implemented a system that spreads this wealth among certain of the county's towing operators. The department maintains a list of "approved" towers, each of which is assigned a particular territory within the county. When the department requires the services of a tow truck, the sheriff's dispatcher calls the towing company of the vehicle operator's choice; if no tower is specified, the dispatcher calls the listed tower whose territory includes the location of the vehicle in question.

The various Lake County sheriffs implementing this system over the years have done so without the benefit of any local ordinances or written procedures, guidelines, or rules to govern the selection of which towing companies receive a spot on the list and an assigned territory. These assigned towing areas are occasionally redrawn and towers added or removed from the list, particularly following elections. From 1997-1999, there were about a dozen towers on the list.

Roger Whitmore ("Roger1"), president of Roger Whitmore's Automotive Services, Inc. ("Roger's"), operates a listed towing service that has done work for the sheriff's department since 1972. In 1980, Roger's was allocated a specific towing territory in the northeastern corner of Lake County and retained that area with some adjustments through at least 1999. According to Roger, inclusion on the list does not come cheap. Three different sheriffs had, over the years, personally visited Roger in order to sell tickets for political fund raisers. For example, Sheriff Thomas Brown made personal appearances at Roger's with tickets in hand. Sheriff Mickey Babcox came to Roger's, placed fund-raiser tickets on the counter, and collected checks from Roger. Sheriff Clinton Grinnell did likewise. Sheriff's deputies often followed up these visits, to pick up checks or to verify that Roger would be attending the fund raisers.

Roger felt pressured to purchase the tickets for several reasons. For one, the officers appeared at Roger's business openly displaying badge and gun. Plus, Roger had heard rumors that a towing company refusing to purchase tickets had found itself "kicked off" the approved list. Roger therefore felt intimidated and concluded that he had no choice but to purchase the tickets, because otherwise "maybe they would take [his] business away." Even when some sheriffs mailed tickets, rather than making personal appearances, Roger felt "slightly uncomfortable." Until 1998, Roger always supported the incumbent sheriff during elections.

A. Del Re's Campaign for Sheriff

In 1996, Sheriff Grinnell retired, and the county board appointed Undersheriff Gary Del Re as Grinnell's replacement for the remainder of the term. When Del Re assumed the helm as Grinnell's replacement, he delegated responsibility for all towing matters to Gary Stryker, his replacement as undersheriff. In 1997, Del Re kicked off a campaign to be elected sheriff in his own right. Del Re duly formed a campaign committee that included Stryker and several others. The committee was officially in charge of obtaining campaign contributions for Del Re and for filing all required disclosure forms. Del Re also enlisted the services of Tom Crichton, a real estate broker, who had extensive experience (including fund raising) in various political campaigns in Lake County and statewide.

During the campaign, Crichton introduced Del Re, who was relatively new to Lake County, to various business owners in the county. The parties dispute whether Del Re's meet-and-greets were for the purpose of soliciting campaign funds.2 Of the businesses Del Re visited, only three of them were towing operators — Ray's Shell, A-Tire, and Max Johnson's Auto Center. Johnson's was a used car dealership that provided the sheriff's department with a number of vehicles for use in undercover investigations. Johnson's was also a backup tower for the sheriff's department and not on the approved list.

Roger initially supported Del Re's campaign for sheriff. In February 1998, however, Roger decided to switch his support to Willie Smith, Del Re's challenger in the primary election. Roger's change of heart came about following a conversation with another towing operator, Ernie Vole. Vole passed on a rumor that Wildwood Towing Service "had the ear of Sheriff Del Re" and was working to exclude Roger's from a new towing area coming open due to an operator being dropped from the list. According to the rumor, Del Re had planned to split the new territory between Roger's and Wildwood, but Wally Herman, Wildwood's owner, convinced Del Re to "screw" Roger's and give Wildwood the entire territory.

Shortly after his conversation with Vole, Roger contacted Undersheriff Stryker and asked about the rumors. Stryker denied them as "nonsense," but Roger was not convinced. He also believed that Willie Smith had a decent shot of winning the election and would be more accessible than Del Re, who, Roger believed, didn't "like to return his phone calls and stuff like that." Thereafter, Roger attended several fund raisers for Smith. Smith promised Roger that he would be "fair" in towing area distributions, which Roger interpreted to mean that Smith would "divvy" the new towing area between Roger's and Wildwood. Roger donated $500 to Smith for his primary challenge. Roger also lent Smith a van from his shop at no charge for use in campaigning. A-Tire and Ernie's Wrecker Service (owned by Vole), both on the approved list, also supported Smith and donated money to his primary campaign ($1000 and $500, respectively).

Later, Roger informed Undersheriff Stryker that he and his brother Randy (who owned Whitmore's Service, another approved tow operator) had decided to support Smith. Stryker expressed disappointment with the brothers' decision.

Unfortunately for Smith and his backers, however, Del Re won the primary election in April 1998. Shortly thereafter, in June 1998, Roger donated $250 to Del Re's general election campaign. Other Smith backers, including A-Tire, Ernie's Wrecker Service, and Roger's brother, did likewise, contributing various sums. Del Re went on to win the general election in November of 1998, and towing matters proceeded as normal for the remainder of 1998. Roger's continued to tow for the sheriff's department as it had before, and for a while, Roger did not notice any difference in the way his company was being treated by the department.

B. Del Re's Modification of Towing Areas

Sometime in early 1999, Del Re decided to change the towing boundaries. Del Re discussed his decision with Stryker and brought up the possibility of having Max Johnson do some towing for the department. During Del Re's campaign, Johnson had spoken to Crichton to ask how he might receive towing referrals from the department. The parties dispute whether Johnson contacted the sheriff's department directly to request a towing area, or if he spoke only with Crichton. At any rate, Del Re decided to include Johnson on the list. Del Re ordered one of his deputies to inspect Johnson's Auto Center as soon as possible to ensure that it met all the requirements of the Illinois Vehicle Code.

When devising the new towing boundaries, Stryker split off part of Roger's territory to give to Johnson because his business was located within Roger's geographic area, and Roger's received substantially more calls than most of the towers on the list. In April 1999, upon Del Re's approval of Stryker's plan, the sheriff's department sent letters to each of the twelve towers on the list advising them of the changes. The letter stated that the department planned to "slightly modify" assigned territories in order to "maintain organizational efficiency."

As a result of the new plan, at least five of the towers experienced changes in their towing boundaries. Roger believed that his business suffered "significant loss" of territory due to the split with Johnson. Ernie's Wrecker Service picked up all of Illinois Route 60, whereas before it had only isolated portions of the roadway. A-Tire's boundaries changed "slightly" or not at all. Randy, Roger's brother, lost a busy intersection. The areas of other listed towers, including H & H Towing, Snyder's, and Wildwood, were modified slightly or remained the same.

C. Del...

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