Municipality Not Liable For Activity Of Agents Who Had No Final Policymaking Authority
MILESTONE v. CITY OF MONROE (November 21, 2011)
The city of Monroe, Wisconsin (the "Swiss Cheese Capital of the U.S.A.") operates a Senior Center for its older residents. Nine volunteers sit on the Monroe Senior Citizens Board, which promulgated a Code of Conduct for the center. Edith Milestone used the center frequently, but not without incident. She was a frequent disruptive influence at the center and was warned about her failure to behave reasonably. In late 2008, she got into a heated discussion with the center's Director and threatened to sue her. The next day, the Center sent Milestone a letter advising her that she was no longer welcome. The letter listed the various alleged violations of the Center's Code. At Milestones request, the Senior Citizens Board held an evidentiary hearing and affirmed the ban. The Board also advised Milestone that she could appeal the finding to the Monroe Common Council. Instead of appealing, Milestone brought a § 1983 suit against Monroe, alleging violations of her due process and free speech rights. Magistrate Judge Crocker (W.D. Wis.) granted summary judgment to the defendants on the ground that neither the Director nor the Board were final policymakers for Monell purposes. Milestone appeals.
In their opinion, Seventh Circuit Judges Manion, Sykes, and Hamilton affirmed. The Court agreed with the magistrate, at least as far as he went. In order to establish liability against the city, there must be (in this case) a decision by a municipal agent with final policymaking authority. It is clear that neither the Director nor the Board had that authority. The Director's decisions are all subject to review by the Board. Under state and local law, the Board did not have final policymaking authority. The Monroe Common Council retained ultimate authority over the Board's activity in this area. Although the city cannot be liable for the actions of the Director or the Board under Monell, Milestone also brought a claim based on the Code of Conduct itself. The code is municipal policy and can subject the city to liability if it, as Milestone alleged, violates the First Amendment. Because the Code is content neutral, it's restrictions are acceptable if they are: a) narrowly tailored, b) to achieve a significant governmental interest, and c) allow for ample alternative communication channels. The Court concluded that the Code met each of these requirements. First, the rules only require visitors to treat each other with respect and to refrain from abusive language. Second, the Center's goal was to create a pleasant and upbeat environment for its older citizens. Third, the Code does not restrict a visitor's right to express herself, as long as she does so respectfully. The Code is a content-neutral reasonable time, place, and manner restriction and does not violate the First Amendment. Finally, the Court rejected Milestone's void for vagueness claim. Any person of reasonable intelligence would understand what conduct is prohibited.
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John Tamburo designs software for dog lovers. He lives and works in Illinois. One of his products is an online
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After Chase Bank obtained a judgment against Andrew and Carolyn London, it issued a Citation to Discover Assets to Charter One Bank. The citation prohibited Charter One from allowing any transfer or disposition of the London’s property "not exempt from execution." Included with the citation was a specific notice indicating that Social Security benefits were exempt funds. Charter One froze the London's accounts, including one into which Social Security benefits were deposited electronically. The Londons demanded that Charter One release the exempt funds -- Charter One refused. Over the course of the next several weeks, additional Social Security deposits were made to the account. They also were frozen and their release denied. The Londons filed suit under § 1983, claiming that the bank violated their constitutional right to due process under the Fourteenth Amendment as well as 42 U.S.C. § 407(a). The district court granted Charter One's motion to dismiss, concluding that the temporary freeze did not violate § 407(a) and that the Londons were afforded adequate process by a post-deprivation hearing in state court. The Londons appeal.
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Mark Rujawitz was an at-will employee of the
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Kane County set up a Child Advocacy Center (“Center”) to coordinate the investigation and prosecution of child sexual abuse. The Child Advocacy Advisory Board (“Board”) is responsible for drafting the policies and procedures for those investigations and prosecutions. Kathryn Berg and David Byrne were a child protection investigator and police officer, respectively, assigned to the Center. [The facts that follow, given the posture of the appeal from a motion to dismiss, are taken from the complaint.] In mid-2001, Berg and Byrne interviewed a six-year old boy and his parents. The boy claimed he had been sexually abused by “Lorri.” Berg and Byrne failed to follow accepted techniques used in child victim interviews. They did not use techniques to identify the perpetrator and did not even ask the boy to describe her. Within days, Lorri Bielanski, a fifteen-year-old neighbor of the boy, was notified that credible evidence existed that she had sexually assaulted the boy. Sometime shortly after Berg and Byrne’s interview of the boy, they learned that: a) he was taking medication for Attention Deficit Hyperactivity Disorder, b) he was in special education classes, c) he was known, on two occasions, to have undressed with others and tried to get others to undress, d) his parents confronted him about the undressing incidents and punished him, and e) his parents suggested to him that he may have been sexually abused. Berg and Byrne did not disclose this information to the prosecutors or Bielanski. The county filed a Petition for Adjudication of Wardship, alleging the commission of two sexual assault felonies. As a result, Bielanski was forced to attend court hearings and an interview with a probation officer and was not allowed to travel out of the state without court permission. Bielanski was eventually acquitted of all charges and was successful in getting her record expunged. She filed a complaint against the County, the Center, the Board, Berg, and Byrne. Based on § 1983, she alleged: a) that the defendants violated her Fourth Amendment rights by compelling her to attend the court hearings and restricting her movement, and b) that Byrne and Berg violated her rights to a fair trial and due process by withholding the information they had about the boy. The district court granted defendants’ motion to dismiss. Bielanski appeals.
Robert Powers was employed by the State of Illinois in 2002 as Deputy Director of the Department of Central Management Services. Powers is alleged to have been part of a scheme to help certain state employees keep their jobs. The employees had been appointed to their jobs for four-year terms. During those terms, they could not be fired but for cause. Instead of allowing their terms to expire shortly after the election of a new governor and risk being replaced, these employees voluntarily resigned before the election. They were then reappointed to new four-year terms. Powers signed the personnel forms that were necessary for the scheme to succeed. Powers did not have the authority to sign the forms and did so knowing that the Director would not. In October of 2002, Powers took a new job as Executive Secretary of the Civil Service Commission (“Commission”). The role of the Commission is to hear appeals of state employees regarding discharges and discipline, modify personnel rules, and investigate personnel violations. Powers’ role as Executive Secretary included drafting rules and regulations, making recommendations regarding resolution of disputes, and interpreting the Personnel Code, among others. When a new governor took office in January of 2003, he began an investigation into the late appointments. The governor’s office concluded that Powers was involved in the scheme and referred its findings to the Commission. The Commission suspended Powers and authorized its Chairman to conduct a hearing. The Chairman was authorized to fire Powers if he did not produce exculpatory evidence at the hearing. The Chairman notified Powers of his rights and held a hearing. The Chairman recommended that Powers be fired – and he was. Powers received a post-deprivation hearing before an ALJ. The ALJ concluded that the firing was warranted. Powers brought suit under 42 U.S.C. § 1983. He alleged that his firing was a deprivation of his right to association because it was on account of his party affiliation. He also alleged a lack of pre-deprivation procedural due process. The defendants conceded, for purposes of summary judgment, that Powers was fired because he was a Republican. The district court granted summary judgment to all defendants. Powers appeals.