# Easter House, an Illinois, Not-For-Profit Corporation v. Thomas Felder, Florence McGuire and Joan Satoloe

> Court of Appeals for the Seventh Circuit · July 8, 1988 · 852 F.2d 901

URL: https://www.frixlaw.com/law-library/cases/9477961

## Case

- **Full name:** EASTER HOUSE, an Illinois, Not-For-Profit Corporation, Plaintiff-Appellee, v. Thomas FELDER, Florence McGuire and Joan Satoloe, Defendants-Appellants
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** July 8, 1988
- **Citations:** 852 F.2d 901; 1988 U.S. App. LEXIS 9653; 1988 WL 72196
- **Precedential status:** Published
- **Opinion:** Concurring in part by Kanne
- **Judges:** Cummings, Cudahy, Kanne
- **Cited by:** 17 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Vacated on other grounds by Easter House, an Illinois Not-For-Profit Corporation v. Thomas Felder, Florence McGuire and Joan Satoloe, 861 F.2d 494 (1988).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9477961

## How later opinions describe it (automated extraction)

- finding property interest in renewal of adoption agency license

## Opinion text

KANNE, Circuit Judge,
dissenting in part and concurring in part:
In my view, Easter House is not entitled to recovery under § 1983 for the deprivation of its operating license. The tortious act of the state employees underlying this deprivation of property was both random and unauthorized — and meaningful post-deprivation remedies of injunctive relief and damages were available in state court. Therefore, there was no violation of the Fourteenth Amendment and I respectfully dissent from the majority’s opinion affirming the jury verdict in Count I.
The Supreme Court, in Hudson v. Palmer, 468 U.S. 517 , 104 S.Ct. 3194 , 82 L.Ed.2d 393 (1984), held that a random and unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is available. Hudson explicitly limits the use of intentional torts as a basis for a § 1983 claim if the action of the state tortfeasors was random and unauthorized. Hudson’s extension of § 1983 limitations followed the Court’s decision in Parratt v. Taylor, 451 U.S. 527 , 101 S.Ct. 1908 , 68 L.Ed.2d 420 (1981).
To avoid what it perceives as an unpalatable expansion of Parratt/Hudson, the majority holds (at page 915) that when high-level state officials conspire to unlawfully misuse established procedures to deprive a citizen of his property rights — such action can never be “random and unauthorized.” By such a sweeping and questionable generalization, the majority imposes an unwarranted restriction on the Par-ratt/Hudson doctrine — and, correspondingly, broadens the scope of § 1983 in actions against state employees founded on intentional torts relating to property.
The majority attempts to circumvent the Parratt/Hudson limitation on § 1983 actions by relying on the rationale of the Ninth Circuit’s opinion in Bretz v. Kelman, 773 F.2d 1026 (9th Cir.1985). Bretz held that a conspiracy, by definition, could not be random and further purported to confine Parratt to relatively minor deprivations of property by low-level officials.
The Bretz case was emphatically rejected by the Fifth Circuit in Holloway v. Walker, 790 F.2d 1170 (5th Cir.), cert. denied, 479 U.S. 984 , 107 S.Ct. 571 , 93 L.Ed.2d 576 (1986); see also Schaper v. City of Huntsville, 813 F.2d 709, 715 (5th Cir.1987). The Holloway court found the reasoning of the Ninth Circuit to be unpersuasive. Likewise, I find the rationale in Bretz unpersuasive and its application here is unavailing. I do not believe, as the majority does, that the definition of “random and unauthorized” conduct by state employees is so *923 narrow as to “exclude a conspiracy by high-level officials.” As the Holloway court stated:
The Ninth Circuit’s conclusion that a conspiracy cannot be a random act is also unpersuasive. From the point of view of the state a conspiracy among its employees can indeed be a random act if the state cannot anticipate or control such conduct in advance. See Hudson v. Palmer, 468 U.S. 517 [532], 104 S.Ct. 3194, 3203 , 82 L.Ed.2d 393 (1984). Of course, a conspiracy is not random from the point of view of the conspirators but this is to say no more than that a conspiracy is an intentional act, rather than a negligent one. The effect of the Ninth Circuit’s holding is to revive the intentional/negligent act distinction, rejected in Hudson , in another form.
Holloway, 790 F.2d at 1172 .
Moreover, the fact that the conspiracy involved one or more “high-level officials” did not, in the view of the Holloway court, change the applicability of the Par-ratt/Hudson limitations. When state administrative procedures provide due process but are violated by a random and unauthorized act of even a high-ranking state employee, “Parratt/Hudson establishes that no federal constitutional due process violation has occurred.” Id. at 1173 .
In fact, the case before us is plainly subject to the limitation imposed by Par-ratt/Hudson. The record discloses absolutely no indication that the conduct of the state employees represents any more than a single, random, and unauthorized act. The act of conspiracy was random as to the agency’s employees and was limited solely to the license of Easter House among the many other licenses issued by the agency. The act was also unauthorized since it clearly violated agency procedures. Under these facts, the state could not reasonably anticipate the wrongful conduct of its employees and no appropriate predeprivation remedy could have been fashioned.
Having disposed of the random and unauthorized limitation in an effort to bring Count I within the ambit of § 1983, the majority gives only brief mention to the assumed inadequacy of post-deprivation remedies. In footnote 14, the remedy of a state law tort suit is characterized as “ ‘a lengthy and speculative process’ ... complicated by the ‘limited liability and extensive immunities of public officials to tort suits under Illinois law.’ ” (citations omitted). With regard to specific remedies, the majority further comments that the defendants claimed only that Easter House could have sought injunctive relief, citing Ill.Rev. Stat. ch. 121V2, H 312(3) (1986); id. ch. 140, 11 22 (1986).
However, I am unconvinced that the Illinois courts could not have provided meaningful post-deprivation remedies to Easter House. The majority’s footnote 14 reference seems to indicate that any meaningful remedy available to Easter House would have been limited to injunctive relief. However, it appears to me that Illinois law offered a meaningful avenue for making Easter House whole. For example, Ill.Rev. Stat. ch. 121V2, 11 313, provides for injunc-tive relief in deceptive trade practice cases and states that such injunctive relief “is in addition to remedies otherwise available against the same conduct under the common law and other statutes of this state.” (emphasis added). Illinois law provides a former employer with a remedy against a former employee who solicits key clients and improperly exploits benefits gained by his or her prior employment. Smith-Shrader Co. v. Smith, 136 Ill.App.3d 571 , 91 Ill.Dec. 1, 5-6 , 483 N.E.2d 283 (1985). Also, Illinois law affords a remedy to an individual whose contractual relations are subjected to interference at the hands of a third party. Williams v. Weaver, 145 Ill.App.3d 562 , 99 Ill.Dec. 412, 417 , 495 N.E.2d 1147 (1986); Galinski v. Kessler, 134 Ill.App.3d 602 , 89 Ill.Dec. 433, 437 , 480 N.E.2d 1176 (1985).
My reading of the Illinois law with regard to the immunity of public officials also is at odds with the characterization of the “extensive immunities of public officials” expressed by the majority. While Ill.Rev.Stat. ch. 127, 11 801 prohibits suits against the State of Illinois (unless they are *924 brought in the Illinois Court of Claims — Ill. Rev.Stat. ch. 37, ¶ 439.8), the Illinois Supreme Court has held that state employees are not granted immunity similar to that enjoyed by the state. Senn Park Nursing Center v. Miller, 104 Ill.2d 169 , 83 Ill.Dec. 609, 618 , 470 N.E.2d 1029 (1984); see also Smith v. Jones, 113 Ill.2d 126 , 100 Ill.Dec. 560, 562 , 497 N.E.2d 738, 740 (1986) (“An action against a state official for conduct in his official capacity will withstand a motion to dismiss the complaint on sovereign immunity grounds if the complaint alleges that the official is ... violating a law of Illinois and thus acting beyond his authority”)-
The characterization of Illinois state court remedies as a “lengthy and speculative process” has no bearing on the constitutional adequacy of a post-deprivation remedy. Almost any court action (including the § 1983 action below) is capable of being described as a “lengthy and speculative process.” Moreover, the fact that state procedures do not afford relief identical to that sought under § 1983 does not make those state procedures constitutionally inadequate. Parratt, 451 U.S. at 544 , 101 S.Ct. at 1917 ; Hudson, 468 U.S. at 535 , 104 S.Ct. at 3204 .
Finally, the majority expresses a concern that the unrestricted application of Parratt would eliminate § 1983 as a remedy for virtually any property deprivation since state tort remedies are generally available for property loss. This court expressed such reservations in Tavarez v. O’Malley, 826 F.2d 671 (7th Cir.1987), and also in Wilson v. Civil Town of Clayton, 839 F.2d 375 (7th Cir.1988). However, the corollary of the Parratt/Hudson doctrine should allay such fears. The key is the proper analysis of “random and unauthorized.” If the acts of state employees are not random or are authorized the avenue is open for pursuit of claims under § 1983 alleging deprivation of property without due process.
Based on the facts presented here and the availability of meaningful Illinois remedies, I believe that the analysis by the majority is defective. A reversal in this case would not expand the Parratt/Hud-son limitation, but would merely represent an appropriate application of that limitation to § 1983 actions based on intentional torts. The tortious act by state employees could not be anticipated or controlled in advance. After the tortious act was committed, Easter House had a range of meaningful state remedies available to it. It was not denied due process. The Fourteenth Amendment was not violated and § 1983 is not applicable here. For the foregoing reasons I would reverse the decision' of the district court with regard to Count I.
I concur with the reversal of Count II on the grounds that the investigation infringed no protected property interest.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9477961. Public record. Not legal advice.