Rasche, Roger v. Village of Beecher

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3750
ROGER RASCHE and VELMA RASCHE,
Plaintiffs-Appellants,
v.
VILLAGE OF BEECHER, an Illinois
Municipal Corporation and PAUL
LOHMANN, individually and as Agent
for the Village of Beecher,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 2168—Joan Humphrey Lefkow, Judge.
____________
ARGUED MAY 30, 2003—DECIDED JULY 16, 2003
____________
Before FLAUM, Chief Judge, EASTERBROOK and RIPPLE,
Circuit Judges.
RIPPLE, Circuit Judge. Roger and Velma Rasche (“the
Rasches”) brought this action pursuant to 42 U.S.C. § 1983against the Village of Beecher and the Village President
Paul Lohmann. They alleged that they had been the vic-
tims of retaliation because they had exercised their First
Amendment rights by opposing Village bond proposals.
The district court granted summary judgment for the Vil-
2 No. 02-3750
lage and for Mr. Lohmann. The Rasches appeal. For the
reasons set forth in this opinion, we now affirm the judg-
ment of the district court.
I
BACKGROUND
Roger Rasche owns and operates a vehicle towing busi-
ness out of his home, located on Illinois Route 1 within the
Village of Beecher, Illinois. He began his business in 1978
and has maintained a sign on his property since 1978. The
business is licensed only in Mr. Rasche’s name, but his wife,
Velma Rasche, works full time for the business and does
not receive a separate salary. Mr. Rasche therefore char-
acterizes the business as a “family business” owned by
1
himself and his wife. R.37, Ex.3 at 12-13.
The Village of Beecher, Illinois, is a municipal corpora-
tion with a Board of Trustees. The Village President is
Paul Lohmann, an individual defendant in this action. In
1997, the Village Board of Trustees enacted an ordinance
authorizing the issuance of $4.5 million in bonds for the
purchase of a golf course. Mr. Rasche was a principal
organizer of a petition drive to require a referendum
concerning the purchase of the course. Mr. Rasche spoke
publicly concerning this effort, in addition to co-sponsor-
ing a political advertisement in a newspaper and deliver-
ing fliers listing his home number. According to a Village
resident, Pat Schroeder, one of the Trustees, Gary LaGesse,
1
We see no reason to disturb the district court’s determina-
tion that Mrs. Rasche’s interest in this litigation is sufficient to
give her standing to appear as a litigant in this action. See infra
note 8.
No. 02-3750 3
in his capacity as the chair of an unrelated association, the
Beecher Recreation Association, stated at a meeting of that
association in 1997 that he “would get even with anyone
opposed to the Golf Course Referendum” and that he
“would take out anybody who stood in [the] way of pur-
chasing [the] golf course.” R.37, Ex.6 at 10, 40. The voters
of the Village of Beecher defeated the purchase of the
golf course at an election held on March 17, 1998.
In 1999, the Village of Beecher Board enacted an ordin-
ance to issue $907,000 of bonds to pay for improvements
to the Village waterworks. Mrs. Rasche was the leader and
initiator of the petition drive to obtain a referendum on
that proposal. The Rasches circulated the majority of the
petitions on the waterworks bonds, and Mrs. Rasche filed
the petitions with the Village of Beecher City Clerk. The
waterworks bond ordinance was defeated by the Village
of Beecher voters in an election held on March 21, 2000.
At least as early as 1997, the Village Board of Trustees
was concerned about the appearance of Route 1. In July
1997, the Village Trustees decided to authorize enforce-
ment of the Village’s ordinance against temporary or
portable signs. On August 11, 1997, at their meeting, the
Trustees addressed whether the ordinance prohibited
2
temporary or portable signs. The Board did not take
immediate action, but held a public hearing on the tempo-
rary or portable sign issue. Affected property owners,
including the Rasches, received notification by letter. At
2
The ordinance does not expressly prohibit temporary and
portable signs, but it defines a sign as one that is affixed on land
or a structure—thus arguably excluding, at least by implication,
temporary and portable signs. Under the ordinance, all signs
must be approved by the building inspector on application for
a permit. See R.32, Ex.A at 3.
4 No. 02-3750
the meeting, which Mr. Rasche attended, the signs of the
Rasches and seven other businesses were discussed.
At the time it was purchased in 1978, the Rasches’ sign
was portable. However, Mr. Rasche had rotated the wheels
upward, had placed the sign on bricks and had affixed it
to the ground by a play swing cable. The sign had
chicken wire wrapped around it to prevent the letters
from blowing off. An extension cord from the Rasche’s
garage provided power to flashing lights on the sign. Mr.
Rasche did not obtain a building permit when he in-
stalled the sign in 1978.
The zoning ordinance regarding signs had been en-
acted in 1974. Under the 1974 code, before a sign could be
erected, the owner had to obtain a building permit and
approval from the building inspector. Although the code
did not prohibit explicitly temporary or portable signs, it
impliedly defined a sign as requiring a foundation. A sign
is defined as “a name, identification, description, illustra-
tion . . . which is affixed . . . upon a structure or land.” R.32,
Ex.A at 3 (emphasis added). In 1992, the Village amended
its zoning ordinance to prohibit “flashing signs,” to re-
quire that any wiring conform to the electrical code and
to require that the sign be able to withstand wind pressure
of not less than thirty pounds per square foot. Id. The
code also stated that prior existing non-conforming
signs could be used for any remaining depreciation in
value, but not to exceed five years beyond the enactment
of the ordinance.
In 1999, the Village appointed its first “Code Enforce-
ment Officer,” Julie Riechers. Her duties included identify-
ing any code violations and speaking with the owners
about conforming to the requirements. Village Trustee
Patrick Lane stated in his deposition that it was his under-
standing “that with respect to signs and compliance with
No. 02-3750 5
the sign ordinances of the Village of Beecher that would
have been solely Julie’s [Riechers’] responsibility as to what
were proper signs and what were improper signs.” R.37,
Ex.10 at 24-25. In the spring of 1999, Village President,
3
Paul Lohmann, and the Village Administrator, Robert
Barber, expressed to Riechers their concern about the
4
appearance of Route 1.
3
According to Mr. Barber, his duties as the Village Administra-
tor “include making recommendations to the Village Board of
Trustees regarding local legislation, zoning and building issues,
and local ordinance enforcement.” R.32, Ex.A at ¶ 3. He attends
all meetings of the Board of Trustees and answers to and takes
direction from the Board of Trustees and the Village President.
See id. at ¶¶ 2-4.
4
The Rasches maintain that, at this meeting, the “only specific
sign that Barber and Lohmann directed Riechers to look at
was the Rasches’ sign.” Appellants’ Br. at 6. However, as noted
by the district court, this characterization misrepresents the
record. The Rasches base their assertion solely on a statement
made on page 25 of Riechers’ deposition. In response to the
question, “[D]id [Mr. Lohmann and the Village Administra-
tor] mention the Rasche sign to you as one of the signs they
wanted you to look at?,” Ms. Riechers responded “yes.” R.32,
Ex.Riechers’ Dep. at 25. It initially should be noted that this
response itself does not state, as the Rasches contend, that the
Rasche sign was the only sign mentioned; rather the response
indicates that the Rasche sign was “one of the signs they
wanted [Ms. Riechers] to look at.” Id. Further, the dialogue
immediately following this question completely negates plain-
tiff’s contention:
Q: . . . [D]id they mention the Rasche sign to you as one of
the signs they wanted you to look at?
A: Yes. [end of page 25]
(continued...)
6 No. 02-3750
4
(...continued)
Q: Did they mention any other signs by name?
A: Risings, Shady Long Golf Course.
Q: Excuse me a second. Risings, Shady Long Golf Course?
A: Actually I think I’m going to take that back. I assumed this
all on my own. I’m thinking about it. No one told me
to deal with any particular thing. They just said go to
Route 1, pick out things that you think are in violation.
Q: Of the Village—
A: Anything, right.
Q: Of anything?
A: Right. They did not tell me anything like even the sign,
the Rasche sign. We just discussed different—I just actu-
ally did it on my own.
Id. at 25-26.
The Rasches do not include page 26 of the deposition in
their appendix, although they do include and cite to page 25.
They forwarded the same mischaracterization of facts in the
district court. The district court explained:
While plaintiffs allege that at this meeting the only sign
Lohmann told Riechers to specifically look at was Roger’s
sign, they present at best a scintilla of evidence of this
fact. Plaintiffs rely on Riechers’ deposition where she
states that Barber and Lohmann did mention the Rasche
sign as one they wanted Riechers to look at. A few lines
later, however, Riechers retracted the statement and tes-
tified, “Actually I think I’m going to take that back. I as-
sumed this all on my own. I’m thinking about it. No one
told me to deal with any particular thing. They just said go
to Route 1, and pick out things that you think are in viola-
tion.” (Riechers Dep. at 25-26.) (Disappointingly, plaintiffs
fail to acknowledge page 26 of Riechers’ deposition testi-
(continued...)
No. 02-3750 7
On July 9, 1999, Riechers visited with seven business
owners, including Mr. Rasche, concerning their zoning
violations. On July 14 and 15, 1999, Riechers sent letters
to building owners who were not available on July 9,
explaining that their signs were in violation of the Village
Zoning Ordinance, that the sign needed to be removed
within 30 days and that the Village might file with the
Village Attorney a formal complaint. See R.32, Ex.J. Her
memorandum to the Trustees, dated July 16, states that
some of the property owners had complied with the
prior instructions. This memo also notes that on July 9,
Riechers spoke with Mr. Rasche, “gave him copies of the
Ordinances he was violating and gave him 30 days to
remove the sign and clean up the junk. He was also
issued a ticket for no village sticker on the RV that he
owns and is parked in front of his house.” R.32, Ex.M at 1.
On August 9, Riechers visited several property owners,
including Mr. Rasche. This time she reported that Mr.
Rasche had “clean[ed] up the junk in the driveway. How-
ever, the sign was still there and he was issued a ticket
for $25.00. He did unplug the extension cord and the sign
4
(...continued)
mony.) With no argument addressing the testimony, which
fairly read is that Lohmann did not single out the Rasche
property, there is no basis to infer retaliation based on this
meeting.
R.40 at 8. In a footnote, the court recognized that Riechers’
immediate recantation “is consistent with another portion of
Riechers’ deposition testimony. Riechers previously was asked
if specific property owners along Route 1 were singled out for
her to talk to. Riechers responded that there were not, and that
she was to talk to all property or business owners along Route 1.
(Id. at 20).” R.40 at 8 n.8.
8 No. 02-3750
is not lighted or flashing anymore.” R.32, Ex.N at 1. Riechers
details in these reports approximately sixty actions she
took in connection with code enforcement from June 1999
5
to May 2000.
5
The Rasches state repeatedly in their brief that “[w]hen Code
Enforcement Officer Riechers went out to determine if any
business signs along State Route 1 violated the Village of
Beecher’s sign ordinance, she did not determine whether
any other business signs were in violation of the Village of
Beecher sign ordinance except Rasche’s. (Appendix No. 11, pp.
112-133.)” Appellants’ Br. at 8-9. The record does not support
this assertion. For example, on pages 26-27 of her deposition,
Riechers details that she told four other businesses to remove
their signs because the signs were not permanent, had wheels
or were otherwise not affixed to the ground—which was the
same violation the Rasches allegedly committed. See R.32,
Ex.Riechers’ Dep. at 26-27. Also, Riechers produced letters sent
to other business owners who were told that their signs were
in violation and that they were required to remove or to
change their sign. See R.32, Ex.J. She specifically stated in these
letters (dated July 14 and 15, 1999) that she and the Chief of
Police, Mark DiSanto, “went to all local businesses on Dixie
Highway to talk to the owners regarding various code viola-
tions” and to explain that the property owner’s sign was in
violation of the code and needed to be removed in the next 30
days. Id. The letters warn that, if the signs are not removed, “the
Village may file a formal complaint with the Village Attorney.”
Id. The Rasches also emphasize that the sign on Knuth’s Coun-
try Corner Restaurant, owned by relatives of the Village Attor-
ney, was in violation of the ordinance because the restaurant
went out of business in November of 2000 and it is a violation
to have a sign on a vacant building. Riechers testified that
a citation had not been issued to Knuth for his sign because
in February 2001 (three months after the store closed), Knuth
had “removed some of the signs. He has not removed the
(continued...)
No. 02-3750 9
In July 1999, the Village adopted a local adjudication
system to handle ordinance violations. The Rasches re-
ceived numerous warnings and citations for alleged zoning
violations on their property. On August 20, 1999, the
Rasches received another ticket (No. 4101) for the sign. On
October 1, 1999, the Rasches received a warning about a
motor home parked on their property.
On approximately October 21, 1999, Mr. Rasche ap-
peared before the Village adjudication system and ticket
6
No. 4101 was dismissed. On November 23, 1999, the
August 9, 1999, ticket for the sign was dismissed in the
Illinois state circuit court.
On December 13, 1999, the Rasches received a ticket
for having an inoperable vehicle on their property. On
December 17, 1999, they received a notice from the Vil-
5
(...continued)
giant sign that’s on the corner yet. But he has been working
with me on it.” R.37, Ex.1 at 32. According to Riechers’ deposi-
tion, on February 21, 2001, Knuth asked for a few more weeks
to get the large corner sign down because “he said he had
more problems getting that one down. But he did remove the
other ones . . . .” Id. at 33. Thus Riechers had not issued a cita-
tion yet, as of her March 2001 deposition, “because he has
spoken with me and worked with me on it.” Id. at 32.
6
In the Rasches’ statement of facts, this fact appears twice,
but refers to the same occasion and the same ticket—not two
different occasions or tickets. See Appellants’ Br. at 7 (discussing
at top of page that “the Beecher Adjudicatory Hearing Offi-
cer dismissed Ticket No. 4101” and stating at bottom of page
after discussing issuance of further tickets that the “ticket for
the illegal sign, No. 4101, was dismissed by the hearing officer
on October 21, 1999 because it was not an offense covered by
the Adjudicatory Ordinance”).
10 No. 02-3750
lage of Beecher demanding that their sign be removed.
On January 5, 2000, the Rasches received seven addi-
tional tickets for having inoperable vehicles in their front
yard. The inoperable motor vehicle tickets were issued by
Tim Mitchell, a Village police officer at the direction of
Beecher Chief of Police Mark DiSanto. At the same time,
another business, Jody’s Transmission Service, also lo-
cated on Route 1, was issued 29 citations for inoperable
vehicles parked in its front yard.
Robert Barber, the Village Administrator, testified that,
even though he “believed that under our Village Or-
dinance we had the authority to enter upon Rasche’s
property and remove a non-complying sign, [he] felt un-
comfortable and recommended to the Trustees, in an
Executive Session, that we file a Long Form Complaint
in State Court and let the State Court Judge make the
determination. The Trustees concurred with my recommen-
dation. At the Executive Session, possible violations were
discussed and direction was given to the Village Attorney,
Mr. Knuth, to research the matter and draft a Long Form
Complaint for filing in the Circuit Court.” R.32, Ex.A at
¶¶ 49-50. Trustee LaGesse testified that, at a Village
board meeting, the Village Attorney received “the ap-
proval of the village board before he filed the lawsuit”
against the Rasches. R.37, Ex.12 at 33. Village Administra-
tor Barber testified that the reason for bringing the long
form complaint was that “[w]ith the exception of Roger
Rasche . . . all of the business owners along Route 1 com-
plied with Julie Riechers’ requests” and either removed
their signs or brought them into compliance. R.32, Ex.A
at ¶ 56.
On January 12, 2000, the Village Attorney filed a two-
count complaint against Mr. Rasche, alleging that the
sign was erected and the electrical connection was in-
No. 02-3750 11
stalled without the required building permits. On Novem-
ber 28, 2000, the state court granted Mr. Rasche’s motion
7
for a directed verdict.
On February 17, 2000, Mr. Rasche appeared before
the Village adjudication system court on his remaining
tickets (Nos. 4488 and 4304 through 4310); these citations
were dismissed. In sum, the Village adjudicatory officer
dismissed all citations issued to Mr. Rasche for the sign
and inoperable vehicles. The Rasches contend that the
officer dismissed the citations because they were not
among the violations that could be prosecuted through
the local adjudication system. Defendants maintain that
the adjudicatory officer dismissed the tickets because the
wrong statutory section was listed for the alleged violation
and Mr. Rasche was trying to keep his inoperable vehicles
away from the front yard. See Appellees’ Br. at 7-8.
7
The state court’s order directing the verdict states in its
entirety: “This cause comes before the Court for decision on
Defendant’s Motion for Directed Finding, the Court citing
People, ex rel Adams Elec. Co-op v. Village of Cant Point [sic., Camp
Point], 286 Ill. App. 3d 247 [1997] and Village of Riverwoods v.
Untermyer, 54 Ill. App. 3d 816 [1977], hereby grants the Mo-
tion for Directed Finding and all cases outlined in defendants
brief.” Appellants’ App. at 53. The defendants had argued in
their brief supporting their motion for directed verdict that the
Village had failed to “offer into evidence the Village ordinance
itself with publication noted thereon it, certified and signed by
the Village Clerk and therefore, as a matter of law, the Village
did not prove the existence of any ordinance under which
Roger Rasche is charged.” Id. at 39 (citing Village of Riverwoods,
54 Ill. App. 3d 816). Moreover, the Village had failed to offer
into evidence “the Book of Ordinances” and thus failed to estab-
lish “the existence of the ordinance.” Id. at 39 (citing Village of
Camp Point, 286 Ill. App. 3d 247).
12 No. 02-3750
In early 2000, the Village repealed the ordinance creat-
ing the local adjudication system. Village Administrator
Barber explained that he had “received a letter from our
retained hearing officer, John Murphey, resigning as hear-
ing officer; and he also advised the Village that in enact-
ing our Adjudicatory Ordinance, we neglected to include
zoning violations within the purview of the ordinance,
and he maintained that he had no jurisdiction over tickets
covering ordinance violations.” R.32, Ex.A at ¶ 54. Con-
sequently, “[w]ith the resignation of the hearing officer,
and because we concluded that the use of the ordinance
was not cost effective, the Trustees repealed our Adjudi-
catory Ordinance.” Id. at ¶ 55.
II
PROCEEDINGS IN THE DISTRICT COURT
The Rasches brought this § 1983 action against Mr.
Lohmann in both his individual and official capacity and
against the Village. They allege that the citations and
warnings were issued in retaliation for the exercise of
their First Amendment rights in speaking out against
the Village’s golf and waterworks bond proposals.
The district court granted summary judgment to Mr.
8
Lohmann and to the Village. The district court noted
8
Before reaching the merits, the court first noted that, because
“claims against individuals in their official capacities are suits
against the municipality,” it need only consider the claim
against Mr. Lohmann in his individual capacity and the claim
against the Village. R.40 at 6 n.5.
The court also determined that Mrs. Rasche had standing
despite the Village’s argument that “she did not have any
(continued...)
No. 02-3750 13
initially that summary judgment was appropriate because
“(1) Lohmann was not personally involved in the al-
leged constitutional deprivation; (2) the alleged retalia-
tory actions cannot be attributed to the Village because
they were not taken by a person with final policymaking
authority.” R.40 at 7. Consequently, stated the court, it
was unnecessary to address the question of whether the
plaintiffs “show[ed] that their constitutionally protected
speech was a motivating factor in defendants’ actions.” Id.
With respect to Mr. Lohmann, the court determined
that, “[a]lthough the record establishes that Lohmann was
aware of the Village’s efforts to enforce the sign ordi-
nance along Route 1, plaintiffs provide no evidence that
he was aware of any Village official’s retaliatory motive
and no evidence that Lohmann either directed the con-
duct or consented to it.” Id. at 9.
As for the claims against the Village, the district court
simply stated that: “Because the facts read in a light
most favorable to the plaintiffs do not create a genuine
issue of material fact that plaintiffs’ constitutional right
to free expression was denied, it is unnecessary to ad-
8
(...continued)
ownership interests in the business and none of the citations
were issued against her.” Id. at 7 n.7. The district court con-
cluded that “[t]he facts indicate that Velma has an ownership
interest because Rasche Towing may be a family business.
Also, because Velma asserts that defendants retaliated against
her First Amendment rights, she has standing to assert an
injury sustained as a result” and she is not bringing claims “on
behalf of third parties,” but “asserts her own claim, not that
of her husband.” Id.
14 No. 02-3750
9
dress the question of municipal liability.” Id. at 9-10. Nev-
ertheless, the district court went on to note in a footnote
that:
Plaintiffs seem to argue that Riechers or DiSanto was
a final policymaker that would make the Village liable,
even though neither of these individuals is named as
a defendant accused of depriving them of their rights.
The only relevant question then is whether Lohmann
was a final policymaker, and since he has prevailed
on the motion, the Village likewise is not liable. Obvi-
ously, Riechers was not a final policymaker because
all of the evidence indicates that she was an employee
following her superiors’ directions. DiSanto, as police
chief, did not enact the sign ordinance, and it is un-
disputed that the concern about enforcement derived
from the Board. There is absolutely no evidence that
DiSanto was a final policymaker, to say nothing of
the lack of evidence that he had a motive to retaliate
against plaintiffs based on their exercise of protected
speech.
Id. at 10 n.9.
9
This statement seems contrary to the court’s earlier state-
ment that because it agreed that the actions were not attribut-
able to the Village (no municipal liability), it would not con-
sider the question of whether the exercise of their First Amend-
ment rights was a motivating or substantial factor in the Vil-
lage’s issuance of the citations. See R.40 at 7.
No. 02-3750 15
III
DISCUSSION
A.
We first address whether the district court erred in
granting summary judgment in favor of Mr. Lohmann. In
examining this issue, we apply a well-established three-
step analytical framework. We first ask whether the plain-
tiff’s speech was constitutionally protected. See Vukadinovich
v. Bd. of Sch. Trus. of N. Newton Sch. Corp., 278 F.3d 693,
699 (7th Cir. 2002). If the speech was protected, we ask
whether the defendants’ actions were motivated by that
constitutionally protected speech. See id. If the plaintiff
can show that his constitutionally protected speech was
a substantial or motivating factor, the defendants must
show that they would have taken the same action in
the absence of his exercise of his rights under the First
Amendment. See id. If the defendants carry that burden, the
plaintiff bears the burden of persuasion to show that the
defendants’ proffered reasons were pretextual and that
retaliation was the real reason for the defendants’ action.
See id. We also note that, “[s]ection 1983 creates a cause
of action based on personal liability and predicated upon
fault; thus, liability does not attach unless the individ-
ual defendant caused or participated in a constitutional
deprivation.” Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996)
(internal quotation marks and citations omitted).
The district court correctly determined that the evi-
dence in this record does not support a determination
either that Mr. Lohmann “caused or participated in a
constitutional deprivation,” Vance, 97 F.3d at 991, or, under
the three-step approach, that Mr. Lohmann’s “actions [were]
motivated by [the Rasches’] constitutionally protected
16 No. 02-3750
10
speech,” Vukadinovich, 278 F.3d at 699. The Rasches’
allegation that Mr. Lohmann directed Riechers to examine
only the Rasches’ sign will not sustain their burden in this
regard. As noted at some length earlier, see supra note 4,
Riechers gave two versions of her meeting with Village
officials. If Riechers’ initial deposition statement is true,
Mr. Lohmann directed her to inspect not only the Rasches’
sign but also the signs for Risings and for the Shady Long
Golf Course. In that case, Mr. Lohmann did not tell her
to look exclusively at the Rasches’ sign. On the other hand,
if Riechers’ immediate retraction is accurate, Mr. Loh-
mann did not direct her to any particular sign. See R.32,
Ex.Riechers’ Dep. at 25-26. Neither version supports
the view that Mr. Lohmann gave Riechers direction to
focus exclusively on the Rasches’ sign. Accordingly, the
district court did not err in granting summary judgment
for Mr. Lohmann.
B.
We now turn to the issue of whether the district court
erred in determining that summary judgment on behalf
of the Village was warranted.
“[M]unicipalities cannot be held liable for § 1983 claims
under a theory of respondeat superior.” Palmer v. Marion
County, 327 F.3d 588, 594 (7th Cir. 2003) (internal quotation
marks and citations omitted). The Rasches therefore must
establish that “the deprivation of constitutional rights is
caused by a municipal policy or custom.” Kujawski v. Bd.
of Comm’rs of Bartholomew County, 183 F.3d 734, 737 (7th
Cir. 1999).
10
It is undisputed that the Rasches’ speech on the bond issues
was constitutionally protected.
No. 02-3750 17
Under our case law, unconstitutional policies or cus-
toms can take three forms: (1) an express policy that, when
enforced, causes a constitutional deprivation; (2) a wide-
spread practice that, although not authorized by written
law or express municipal policy, is so permanent and
well settled as to constitute a “custom or usage” with
the force of law; or (3) an allegation that the constitutional
injury was caused by a person with final policymaking
authority. Palmer, 327 F.3d at 594-95. In our view, the
Rasches cannot prevail under any of these theories.
The Rasches first submit that the Village is liable be-
cause the Board of Trustees directed the Village Attorney,
or at least ratified the Village Attorney’s decision, to file
the state court suit against the Rasches. The Supreme
Court has explained: “[P]roof that a municipality’s legisla-
tive body or authorized decisionmaker has inten-
tionally deprived a plaintiff of a federally protected right
necessarily establishes that the municipality acted culpa-
bly.” Bd. of the County Comm’rs of Bryan County v. Brown,
11
520 U.S. 397, 405 (1997). Here, the Board of Trustees,
the “municipality’s legislative body,” authorized a suit
11
A municipality can ratify the action of its employees by
“adopting an employee’s action as its own” and thus becom-
ing “the author of the action for purposes of liability under
section 1983.” Gernetzke v. Kenosha Unified Sch. Dist. No. 1, 274
F.3d 464, 469 (7th Cir. 2001). In order to adopt such an action, the
municipality must know of the “subordinate’s conduct” and
“approve[] of the conduct and the basis for it.” Baskin v. City
of Des Plaines, 138 F.3d 701, 705 (7th Cir. 1998) (internal quota-
tion marks and citations omitted). Here, the Rasches argue that
the Village, by authorizing the suit in state court, ratified the
Village Attorney’s actions. The suit is therefore an act by the
Trustees. There is no evidence that the Trustees “ratified” any
other actions (such as Riechers’ or DiSanto’s issuance of tickets).
18 No. 02-3750
against Mr. Rasche for an alleged violation of the sign
ordinance. Id.We therefore shall examine whether the Rasches’ speech
concerning the golf course and waterworks bond pro-
posals was, on this record, “a substantial or motivating
factor” in the Village’s decision to bring suit against Mr.
Rasche. Vukadinovich, 278 F.3d at 699. Evaluating the rec-
ord in the light most favorable to the Rasches, the only
evidence that the Village’s decision to file suit was moti-
vated by his speech is the proximity of time between the
suit and the speech, and the testimony concerning a com-
ment made by LaGesse in 1997 in his capacity as a mem-
ber of the Beecher Recreation Association that he “would
take out anybody who stood in [the] way of purchasing
[the] golf course.” R.37, Ex.6 at 10, 40.
The suit by the Village was brought soon after the water-
works referendum was put on the ballot. Although we
have noted that a “telling temporal sequence” can be
used to establish causation, see Sweeney v. West, 149 F.3d 550,
558 (7th Cir. 1998) (internal quotation marks omitted), we
have also recognized in the analogous Title VII context
that timing, “standing alone, does not create a genuine
issue as to causal connection.” Foster v. Arthur Anderson,
LLP, 168 F.3d 1029, 1034 (7th Cir. 1999). A plaintiff
must “show more than just temporal proximity.” Id.We do not believe that the statement by LaGesse, a
single legislator, made in a different capacity and three
years before the legislative action now in question can
be considered sufficiently probative to provide the addi-
12
tional support needed to sustain a jury verdict. The
fact that LaGesse, three years prior to the Trustee’s bring-
12
We therefore need not decide whether this statement is ad-
missible.
No. 02-3750 19
ing suit against the Rasches, in his capacity in a recrea-
tional association, was upset about losing the golf course
does not demonstrate that the entire board of Trustees was
motivated to retaliate unconstitutionally by bringing suit
against Mr. Rasche for his sign. The importance of LaGesse’s
statement is rendered even more feeble when we recollect
the context in which the Village Board took action. It
referred the sign matter to litigation only after numerous
attempts to obtain compliance and only after its attempts at
local administrative resolution had proved fruitless. The
Village Administrator’s unrebutted testimony is that he
recommended the lawsuit to ensure that the Rasches’ sign
was removed only after judicial scrutiny of the proposed
action. There was, therefore, abundant evidence that this
Board decision was taken in the normal course of its
business of pursuing a long-term effort to improve the
Village’s appearance by a broad-scale enforcement of its
zoning ordinances.
The Rasches also submit that the Village is liable under
the first form of unconstitutional policies identified in
Palmer because “the express policy of the Village as en-
forced caused a constitutional deprivation.” Appellants’ Br.
at 21. The Rasches identify the “express policies” or “offi-
cial policy” as “the Adjudicatory Ordinance and the sign
ordinance.” Appellants’ Br. at 13, 18. The Rasches make
no argument that either the zoning ordinance or the ad-
judicatory ordinance is unconstitutional or represents
unconstitutional policies; thus these ordinances do not
fall within the first definition of unconstitutional “express”
policies. The Rasches nevertheless argue that the ordi-
nances, although not unconstitutional in themselves, have
20 No. 02-3750
13
caused a constitutional violation. We cannot accept this
argument.
In order for a § 1983 plaintiff “to establish municipal
liability on the theory that a facially lawful municipal action
has led an employee to violate a plaintiff’s rights,” the
plaintiff “must demonstrate that the municipal action was
taken with ‘deliberate indifference’ as to its known or
obvious consequences.” Bryan County, 520 U.S. at 407. The
Rasches do not articulate how the obvious consequence
of enacting the zoning ordinances was that the ordinances
would be used to retaliate against Rasches’ or other citizens’
exercise of their First Amendment rights. As to the allega-
tion that Mr. Lohmann specifically directed Riechers
to examine only the Rasches’ sign, we already have noted
that the record will not support such an allegation.
As to the third form of unconstitutional policies or
customs, the Rasches argue that various individuals pos-
sessed final policymaking authority. At the outset, we
simply cannot conclude that the evidence would support
a determination that a final policymaker’s decision re-
13
The Rasches later make an almost identical argument con-
cerning Mr. Lohmann. They argue that, assuming he is a final
policymaker, “Lohmann set in motion a series of acts by others,
which he did, and reasonably knew or should have known
that they would cause Riechers and the Police Chief to inflict
the constitutional injuries retaliating against the Rasches only.”
Appellants’ Br. at 16. Outside of the unsupported allegation
that Mr. Lohmann directed Riechers to look at only the Rasches’
sign, the Rasches give no indication of any activities that
Mr. Lohmann “set in motion” which he “reasonably knew or
should have known . . . would cause Riechers and the Police
Chief to inflict the constitutional injuries retaliating against
the Rasches only.” Appellants’ Br. at 16.
No. 02-3750 21
sulted in retaliation against the Rasches. “[M]unicipal lia-
bility under § 1983 attaches where—and only where—a
deliberate choice to follow a course of action is made from
among various alternatives by the official or officials re-
sponsible for establishing final policy with respect to the
subject matter in question.” Pembaur v. City of Cincinnati, 475
U.S. 469, 483-84 (1986) (emphasis added). In order to have
final policymaking authority, an official must possess
“[r]esponsibility for making law or setting policy,” that
is, “authority to adopt rules for the conduct of govern-
ment.” Auriemma v. Rice, 957 F.2d 397, 401 (7th Cir. 1992)
(internal quotation marks and citations omitted). “Authority
to make municipal policy may be granted directly by a
legislative enactment or may be delegated by an official
who possesses such authority, and of course, whether an
official had final policymaking authority is a question
of state law.” Pembaur, 475 U.S. at 483. In examining state
law to determine such authority, we are to “[r]eview[]
the relevant legal materials, including state and local
positive law, as well as custom or usage having the force
of law.” Kujawski, 183 F.3d at 737 (internal quotation
marks and emphasis omitted).
We have further elaborated on the term “final”:
Every public employee, including the policeman on
the beat and the teacher in the public school, exercises
authority ultimately delegated to him or her by their
public employer’s supreme governing organs. A po-
lice officer has authority to arrest, and that authority
is “final” in the practical sense that he doesn’t have to
consult anyone before making an arrest; likewise a
teacher does not have to consult anyone before flunk-
ing a student. That is a perfectly good use of the
word “final” in ordinary conversation but it does not
fit the cases; for if a police department or a school
22 No. 02-3750
district were liable for employees’ actions that it au-
thorized but did not direct, we would be back in the
world of respondeat superior. To avoid this the cases
limit municipal liability under section 1983 to situa-
tions in which the official who commits the alleged
violation of the plaintiff’s rights has authority that
is final in the special sense that there is no higher
authority.
Gernetzke v. Kenosha Unified Sch. Dist. No. 1, 274 F.3d 464,
469 (7th Cir. 2001).
Under this formulation, Riechers certainly was not the
person with final policymaking authority; she occupied
a position quite analogous to a police officer making an
arrest. Although Trustee Lane stated that Riechers was
responsible for determining what signs were proper, it is
clear that Riechers did not set the zoning policy, enact the
zoning ordinance or even determine what area of town
required her concentrated scrutiny. She simply had the
authority to issue tickets and citations. She testified that
she focused on Route 1 at the behest of the Board of Trust-
ees. See R.32, Ex.Riechers’ Dep. at 19-20. She also reported
her activities to the Board of Trustees. See R.32, Ex.M. The
Board set the policy—including her area of focus, Route
1—for her enforcement of the zoning laws. Indeed, at
page 15 of their brief, the Rasches admit as much in argu-
ing that “the Village of Beecher retained the authority to
measure [Riechers’] conduct for conformance with their
policies and approved [Riechers’] decisions in only going
after the Rasches.” Appellants’ Br. at 15. If the Village
retained such authority, then Riechers’ authority cannot
constitute final policymaking authority.
With respect to Mr. Lohmann, the Rasches have brought
forth no authority to establish that, as a matter of state law,
he has the authority to make final municipal policy with
No. 02-3750 23
regard to zoning. Under Illinois law, it is the “corporate
authorities” that have authority concerning zoning policy
and enforcement. 65 ILCS 5/11-13-1. “Corporate authori-
ties” include “the president and trustees or similar body
when the reference is to villages or incorporated towns.”
65 ILCS 5/1-1-2. Nevertheless, it appears that the presi-
dent has only tie breaking authority, veto power (which
can be overridden), and the power to “recommend . . .
measures the . . . president believes expedient.” 65 ILCS
5/3.1-35-5, 5/3.1-45-5, 5/3.1-40-30. In general, the presi-
dent’s responsibilities are to “perform all the duties which
are prescribed by law, including ordinances, and shall
take care that the laws and ordinances are faithfully exe-
cuted.” 65 ILCS 5/3.1-35-5. By contrast, the board of trust-
ees has the authority to “pass ordinances, resolutions,
and motions in the same manner as a city council.” 65
ILCS 5/3.1-45-5. Generally, a person holding only execu-
tive power does not have policymaking authority for
purposes of § 1983; rather, the policymaking authority in
the city structure will be the city council, or here, the
Board of Trustees. See Auriemma, 957 F.2d at 399-400. In
any event, there is no evidence that Mr. Lohmann took
any actions against the Rasches. Therefore, even if Mr.
Lohmann were a final policymaker, he could not be held
liable to the Rasches because there is no evidence that
he took or directed any action against them.
Conclusion
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
24 No. 02-3750
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-16-03