No. 2--95--1603
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
O'HARE TRUCK SERVICE, INC., ) Appeal from the Circuit Court
) of Du Page County.
Plaintiff-Appellant, )
)
)
v. )
) No. 95--L--1155
ILLINOIS STATE POLICE and )
CAPTAIN RICK L. ROKUSEK, )
District 2 Commander, ) Honorable
) Edward R. Duncan, Jr.,
Defendants-Appellees. ) Judge, Presiding.
_________________________________________________________________
JUSTICE COLWELL delivered the opinion of the court:
Plaintiff, O'Hare Truck Service, Inc. (O'Hare), filed a two-
count complaint against the defendants, Illinois State Police (ISP)
and Captain Rick L. Rokusek, seeking monetary damages and
injunctive relief from its removal from the district 2 tow list.
The complaint alleged that O'Hare was removed from the tow list
without due process of law in violation of the Illinois
Constitution and the fourteenth amendment to the United States
Constitution. The defendants filed a motion to dismiss, alleging
that O'Hare's complaint failed to state a cause of action. The
circuit court granted the defendants' motion, finding that O'Hare's
placement on the tow list did not involve a property right as
required to state an action for due process of law. O'Hare
appeals. We affirm.
The facts are taken from O'Hare's complaint. The Illinois
State Police have maintained a list of towing companies from which
they request services to tow abandoned and damaged vehicles from
the Illinois highways. Defendant Captain Rokusek is the commander
of district 2, and O'Hare had a position on the district 2 tow list
from February 1993 to August 16, 1994.
On August 16, 1994, O'Hare received notice from the ISP that
it had violated several rules concerning its placement on the tow
list. Pursuant to district 2's policy governing the list, O'Hare
requested a hearing regarding the alleged rule violations. This
hearing occurred on October 11, 1994. On November 16, 1994,
Rokusek issued a decision suspending O'Hare from the tow list for
90 days. According to the letter, O'Hare would be reinstated after
90 days if it met all the requirements stated in the letter to
Rokusek's satisfaction. On March 1, 1995, the 90-day suspension
period ended, and O'Hare sought reinstatement on the tow list.
Rokusek, however, refused to reinstate O'Hare on the list.
On June 15, 1995, O'Hare filed a complaint alleging that its
rights to due process of law under the Illinois Constitution and
United States Constitution had been violated by being permanently
removed from the tow list without notice or a hearing. A first
amended complaint was filed on September 6, 1995, and the
defendants' motion to dismiss was filed on September 19, 1995.
On November 15, 1995, the circuit court heard arguments
regarding the defendants' motion to dismiss. The court stated that
the question before it was whether O'Hare had showed "a sufficient
property interest in being reinstated on [the] list to provide [it]
with the opportunity under the due process concept and Section 1983
to bring the action." The court noted that the November 16, 1994,
letter from Rokusek stated that O'Hare would have to meet the
requirements to Rokusek's satisfaction before he would reinstate
O'Hare. The court added that the tow list regulations that the
defendants attached to their reply memorandum did not list any
specific regulatory system for reinstatement to the tow list.
Accordingly, the court reasoned that reinstatement was at the sole
discretion of Rokusek, the district commander. The court
concluded, therefore, that the regulatory system did not award
O'Hare a claimed right to be placed back on the tow list. As a
result, the court found that a property right did not exist and
dismissed O'Hare's complaint for failure to state a cause of
action.
On appeal, O'Hare contends that the court erred in granting
the defendants' motion to dismiss because (1) it improperly
considered and relied upon the tow list regulation documents
attached to the defendants' reply memorandum; and (2) the complaint
alleges that O'Hare's position on the tow list is a property right
that was denied without due process of law.
We note that the defendants erroneously contend that sovereign
immunity bars O'Hare's suit in the circuit court. The law is
firmly established that "a suit by private parties seeking to
impose a liability which must be paid from public funds in the
state treasury is barred by the Eleventh Amendment." Edelman v.
Jordan, 415 U.S. 651, 663, 39 L. Ed. 2d 662, 673, 94 S. Ct. 1347,
1356 (1974). Moreover, if a suit is nominally against a state
official in his official capacity, but the state is the real party
in interest, then a suit against a state official that is in fact
a suit against a state is barred regardless of whether it seeks
damages or injunctive relief. Pennhurst State School & Hospital v.
Halderman, 465 U.S. 89, 101-02, 79 L. Ed. 2d 67, 79, 104 S. Ct.
900, 908-09 (1984). However, the Court has recognized an exception
to this rule, and if a suit challenges the constitutionality of a
state official's action, the suit is not one against the State.
Halderman, 465 U.S. at 102, 79 L. Ed. 2d at 79-80, 104 S. Ct. at
909.
In this case, O'Hare's complaint states a action against the
ISP and Captain Rokusek, individually and in his official capacity.
The complaint alleges that the ISP and Rokusek acted
unconstitutionally in removing O'Hare permanently from the district
2 tow list. Consequently, the constitutionality of a state
official's action is alleged, which meets the exception to the
general rule barring suit against the state.
Additionally, the defendants argue that O'Hare's claim is
barred because monetary claims are clearly barred by the eleventh
amendment to the United States Constitution (U.S. Const., amend.
XI). While this assertion of the law is true, O'Hare's complaint
requests monetary damages and an injunction. Moreover, in its
brief, O'Hare states that it seeks money damages from Rokusek in
his individual capacity and does not seek money damages from the
State. Indeed, O'Hare's brief is clear that it only seeks
injunctive relief from the State. Consequently, because O'Hare
only seeks monetary damages from Rokusek in his individual
capacity, its suit for monetary damages is not barred by the
eleventh amendment.
We now turn to whether the circuit court should have
considered the ISP's towing list policy that was attached to the
reply memorandum to the defendants' motion to dismiss. O'Hare
contends that the court should not have considered the towing
policy in its decision because the regulations were presented
solely for the purpose of refuting factual allegations contained in
O'Hare's complaint. We disagree.
A motion to dismiss under section 2--619 of the Code of Civil
Procedure (Code) admits all well-pleaded facts. 735 ILCS 5/2--619
(West 1992); Geick v. Kay, 236 Ill. App. 3d 868, 874 (1992). The
purpose of a section 2--619 motion is to provide a mechanism to
dispose of issues of law or easily proved issues of fact, and the
cause of action should not be dismissed on the pleadings unless it
is clearly apparent that no set of facts can be proved which will
entitle a plaintiff to recover. Meerbrey v. Marshall Field & Co.,
139 Ill. 2d 455, 473 (1990). While appellate review of the
dismissal of a complaint pursuant to a 2--619 motion is limited to
a consideration of the legal questions presented by the pleadings,
our review is independent and we need not defer to the trial
court's reasoning. Miranda v. Jewel Cos., 192 Ill. App. 3d 586,
588 (1989).
Under section 2--619(a)(9) of the Code, an action may be
dismissed on the ground that a claim asserted is barred by other
affirmative matter avoiding the legal effect or defeating the
claim. 735 ILCS 5/2--619(a)(9) (West 1992). "Affirmative matter"
includes something in the nature of a defense that completely
negates the alleged cause of action. Geick, 236 Ill. App. 3d at
874. Indeed, although affirmative matter does not include
" 'evidence offered to refute a well-pleaded fact stated in the
complaint,' " it does include something that " 'refutes crucial
conclusions of law or conclusions of material fact unsupported by
allegations of specific fact contained in or inferred from the
complaint.' " Perkaus v. Chicago Catholic High School Athletic
League, 140 Ill. App. 3d 127, 134-35 (1986), quoting Austin View
Civic Ass'n v. City of Palos Heights, 85 Ill. App. 3d 89, 93-94
(1980).
We find that the ISP towing list policy was affirmative matter
that the trial court could have used when determining whether to
grant the defendants' motion to dismiss. Certainly, the policy
refuted O'Hare's conclusional allegations in paragraphs 9, 16, and
17 of its complaint regarding what procedures the policy itself
requires for removing a tow truck company from the list.
Accordingly, the policy does more than offer a contrary version of
the legal relationship between the two parties. See Longust v.
Peabody Coal Co., 151 Ill. App. 3d 754, 757 (1986) (discovery
depositions not affirmative matter for purpose of 2--619 motion
because the depositions merely negated the allegation that set
forth the basis upon which the defendant was allegedly liable).
Here, O'Hare has alleged its entire claim by drawing certain
conclusions from the ISP policy. Thus, the court properly
considered the policy because the documents could have refuted the
critical conclusions of material fact in O'Hare's complaint that
were not supported by specific facts. See Palmisano v. Connell,
179 Ill. App. 3d 1089, 1097 (1989).
O'Hare also argues that the documents were improper because an
affidavit was not attached in violation of Supreme Court Rule
191(a) (145 Ill. 2d R. 191(a)). Generally, a section 2--619 motion
to dismiss must be supported by an affidavit. In Re Marriage of
Hoppe, 220 Ill. App. 3d 271, 284 (1991). However, where a 2--619
motion is made on grounds appearing on the face of the pleading
attacked, the motion need not be supported by an affidavit. Geick,
236 Ill. App. 3d at 874.
We initially note that O'Hare did not contest the contents of
the policy at the motion to dismiss hearing. Indeed, O'Hare did
not, and does not now, allege that the policy attached is
incomplete or that the copy attached to the motion to dismiss is
incorrect. Instead, O'Hare merely states that it should not have
been admitted as affirmative matter because the documents were
"unsworn" and "uncertified." Consequently, O'Hare has stipulated
that the policy the ISP attached to its motion to dismiss is the
same policy upon which it has based its allegations. Therefore, in
essence, O'Hare contends that the only reason the trial court
should not have considered the policy is because an affidavit was
not attached to it. We find this contention to be without merit.
In Geick, the plaintiff's complaint alleged that the
defendant, acting individually and as the president of the board of
trustees of the Village of Lake Zurich, committed libel, conducted
tortious interference with prospective economic advantage, and
invaded the plaintiff's privacy. Specifically, the plaintiff
alleged that the defendant had exposed aspects of his sexual
harassment case to the public and that the defendant improperly
revealed details of a separation agreement he had signed in
accordance with his resignation from the position of village
administrator. The defendant attached copies of the Lake Zurich
village code and documents from the sexual harassment suit to his
motion to dismiss as affirmative matter. However, the defendant
did not include an affidavit. We found that an affidavit was
unnecessary because the documents were affirmative matter that
concerned the grounds appearing on the face of the plaintiff's
complaint. Geick, 236 Ill. App. 3d at 874.
Similarly, O'Hare's complaint contains allegations that the
ISP towing list policy provides for a hearing before a tow truck
company can be removed from the list. Further, O'Hare alleges that
meeting certain requirements automatically entitles it to be
reinstated onto the list. As a result, in this case, the
defendants have relied on the policy not to contest the well-
pleaded facts of O'Hare's complaint, but to refute the conclusional
allegations that the policy states that a trucking company can only
be removed from the list with notice of alleged rule violations and
that the policy states that a company's meeting district 2's
requirements automatically entitles that company to be reinstated
onto the list. Therefore, we find that an affidavit was not
necessary because O'Hare did not contest the validity of the policy
and the policy concerned grounds that appeared on the face of
O'Hare's complaint.
Next, we turn to O'Hare's contention that it has a property
interest in remaining on the district 2 tow list and cannot be
removed without due process of law. "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 it. He must, instead, have a legitimate claim of entitlement to
it." Board of Regents of State Colleges v. Roth, 408 U.S. 564,
577, 33 L. Ed. 2d 548, 561, 92 S. Ct. 2701, 2709 (1972). Such
property interests are created and defined "by existing rules or
understandings that stem from an independent source such as state
law." Roth, 408 U.S. at 577, 33 L. Ed. 2d at 561, 92 S. Ct. at
2709.
O'Hare does not cite any decision of an Illinois court
indicating that it had a property interest to be on or to remain on
the district 2 rotation list. Moreover, O'Hare does not cite any
Illinois statute or administrative regulation that might be
construed to provide such an entitlement. We note that we are also
unable to find any case or statute that supports O'Hare's position.
In its complaint, O'Hare refers to ISP procedures, rules, and
directives, but these "rules" do not qualify as a state statute or
regulation. Instead, these documents clearly state that they are
"guidelines" for the districts to consider when forming their own
towing policy. Consequently, each district is allowed to form its
own list and adopt its own procedures. Thus, O'Hare has failed to
allege that its property interest is based on an Illinois state law
or regulation.
This reasoning is consistent with the holdings of several
federal circuit courts that have been presented with the issue of
whether a tow truck company has a property right to remain on an
on-call rotating list. In Pritchett v. Alford, 973 F.2d 307 (4th
Cir. 1992), and Abercrombie v. City of Catoosa, 896 F.2d 1228 (10th
Cir. 1990), two cases that O'Hare cites in its brief, the United
States Court of Appeals for the Fourth Circuit and the Tenth
Circuit held that a wrecker service company had a protected
property interest in remaining on a rotation list. However, in
Pritchett the court found that the rotation list was maintained
pursuant to South Carolina regulations, and in Abercrombie, the
Tenth Circuit found that the rotation list was maintained pursuant
to Oklahoma law. See Pritchett, 973 F.2d at 317; Abercrombie, 896
F.2d at 1232. In this case, no such statute or regulatory system
exists. Instead, O'Hare relies on the district 2 rotation policy
itself for the creation of the alleged property right.
Indeed, O'Hare argues that the district 2 regulations
themselves serve to create a property interest under Perry v.
Sinderman, 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972).
In Perry, the Supreme Court stated that rules "promulgated and
fostered by state officials" may justify a legitimate claim of
entitlement. Perry, 408 U.S. at 602-03, 33 L. Ed. 2d at 580, 92 S.
Ct. at 2700. O'Hare argues that the district 2 towing list policy
formed by the ISP created a property right to remain on the tow
list, even though no state law or state regulation exists
concerning the ISP's towing policy. We disagree.
Several federal court cases provide guidance on this issue.
In Morley's Auto Body, Inc. v. Hunter, 70 F.3d 1209 (11th Cir.
1995), the plaintiff alleged that the defendant sheriff's tow
truck policy created a property right. The circuit court
disagreed. It found that there was no Florida state law that
"elevate[d the] policy to the status of a regulation with the force
of law" and that such a policy did not give rise to a
constitutionally protected property interest. Morley's Auto Body,
70 F.3d at 1214.
Similarly, in Piecknick v. Commonwealth of Pennsylvania, 36
F.3d 1250 (3d Cir. 1994), the plaintiff alleged that a policy
created by the Pennsylvania State Police created a constitutionally
protected property interest. As in Morley's Auto Body, the
plaintiff in Piecknick also relied completely on a policy
distributed by the police that had not been specifically authorized
by, or codified in, any state statute or regulation, to show that
he had a property interest. The third circuit found that the
policy the plaintiff relied upon consisted only of "guidelines"
that merely articulated a general policy that did not create an
enforceable contract between the towing services on the list and
the state police. Accordingly, the court affirmed the dismissal of
the plaintiff's complaint. Piecknick, 36 F.3d at 1256.
Finally, in White Plains Towing Corp. v. Patterson, 991 F.2d
1049 (2d Cir. 1993), cert. denied, 510 U.S. 865, 126 L. Ed. 2d 144,
114 S. Ct. 185 (1993), the plaintiff alleged that the New York
State Police's formation of a highway zone tow truck referral
system created a property entitlement. In that case, the state
police divided a section of a state highway into three zones and
assigned exclusive towing referral rights to a single company
within each zone. The police terminated the plaintiff's zone
assignment, and he brought a section 1983 claim (42 U.S.C. §1983
(1988)). The second circuit found that the assignment system was
not authorized in any New York statute or regulation and held that
the plaintiff did not have a cognizable property interest in
continued towing referrals. Patterson, 991 F.2d at 1062.
Although not binding, we find these cases instructive to our
analysis in this case. Here, the ISP issued guidelines to the
districts concerning towing lists. Nevertheless, each district
remained free to form its own policy. Consequently, like the
plaintiffs in Hunter, Piecknick, and Patterson, O'Hare has not and
cannot allege or show, that district 2's policy was created by a
formal and settled source--such as a state statute or regulatory
scheme. Instead, O'Hare relies on the towing policy of district 2
as creating a property right. Absent an entitlement grounded in
state law, however, we cannot find that O'Hare had a protected
property interest in remaining on the district 2 rotation list.
See O'Hare Truck Service, Inc. v. City of Northlake, 47 F.3d 883
(7th Cir. 1995) (held no property interest existed after finding no
Illinois authority supporting the conclusion that Northlake's
policy concerning a rotation list had the force of law), rev'd on
other grounds, 518 U.S. ___, 135 L. Ed. 2d 874, 116 S. Ct. 2353
(1996); Blackburn v. Marshall City of, 42 F.3d 925, 938 (5th Cir.
1995) ("Where a court has found a property interest in remaining on
a rotation list, the plaintiff has alleged a claim of entitlement
supported or created by a formal and settled source such as a state
statute or regulatory system").
Thus, we hold that O'Hare has failed to allege a property
interest protected by the due process clauses of the fourteenth
amendment and the Illinois Constitution. As a result, O'Hare's
complaint does not state a cause of action for a due process
violation, and the motion to dismiss was properly granted.
For the foregoing reasons, the judgment of the circuit court
of Du Page County is affirmed.
Affirmed.
McLAREN, P.J., and HUTCHINSON, J., concur.