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NIEBUR v. TOWN OF CICERO

May 15, 2002

DAVID R. NIEBUR AND PHILLIP T. BUE, PLAINTIFFS,
V.
TOWN OF CICERO, BETTY LOREN-MALTESE, INDIVIDUALLY, MERRICK SCOTT RAYLE, INDIVIDUALLY, THE BOARD OF FIRE, POLICE, AND PUBLIC SAFETY COMMISSIONERS OF THE TOWN OF CICERO, AND CLARENCE GROSS, INDIVIDUALLY, DEFENDANTS



The opinion of the court was delivered by: Elaine E. Bucklo, United States District Judge

              ON MOTION TO RECONSIDER

In an order of March 29, 2002, I granted the defendants' post trial motions in part, among other things, allowing a new trial on the due process liberty claim. I relied upon an Illinois Supreme Court decision, Bovinette v. City of Mascoutah, 302 N.E.2d 313 (Ill. 1973), which, if good law, would dictate that result. The plaintiffs have called my attention to Illinois Public Act 80-819, legislatively overruling Bovinette, and to several cases supporting that interpretation. See Robinson v. Akins, No. 89 C. 5413, 1990 WL 71285, at *8-9 (N.D. Ill. May 7, 1993); Gorr v. Bd. of Fire and Police Comm'rs, 494 N.E.2d 1221, 1224 (Ill. App. Ct. 1986); Mandarino v. Lombard, 414 N.E.2d 508, 509 (Ill. App. Ct. 1980). Although Bovinette shows up as good law on Westlaw's Keycite, and the relevant headnotes keyed to the pertinent propositions do not disclose the references to the contrary cases plaintiffs cite, I conclude that plaintiffs are correct, and Loren-Maltese in effect concedes this. Accordingly I vacate the opinion and order of March 29, 2002, and substitute for it the attached amended opinion denying the defendants' motion for a new trial on the due process liberty claim, and making appropriate changes elsewhere. The reasoning is explained therein and I do not attempt to summarize it here. In view of that determination, I deny and deny as moot Rayle's motions for reconsideration, which depend in large part on the absolute immunity for prosecution, now denied, that I had been compelled to grant him in view of my original decision.

As to Loren-Maltese's further motions for reconsideration, I have reviewed them and found them meritless. The Town of Cicero's motions are also insufficient. I will remark that the effort, with regard to Bue's contract, to shift from the parol evidence argument to a contract integration argument never raised, must be unsuccessful, and, moreover, even were I consider the argument, I would have to reject it, because I would treat the later modification as a waiver of the integration clause. The rest of the defendants' arguments are even less meritorious than this.

Plaintiffs' motion to reconsider my order of March 29, 2002 is GRANTED IN PART AND DENIED IN PART. That order is VACATED and the attached amended memorandum opinion substituted in its place. The defendants' motions to reconsider that order are DENIED.

AMENDED MEMORANDUM OPINION AND ORDER

David Niebur and Philip Bue were hired as police chief and deputy police chief of the Town of Cicero, Illinois, Niebur in December 1997, and Bue in March 1998, supposedly to clean up an admittedly corrupt, factionalized, and otherwise troubled police department. For some months, they got along well with the Town President, Betty Loren-Maltese, who had much public praise for the plaintiffs' performance. However, things changed when they began to investigate suspected wrongdoing involving, among other things, relations between town officials and Ram Recovery, Inc., a towing firm under contract to the Town that was apparently engaged in selling stolen cars, as well as rumors that Town police officers were improperly deleting entries about stolen cars from official records. They communicated with the FBI and other federal investigators looking into suspected wrongdoing in Cicero.*fn1 On April 23, 1998, Niebur and Bue were subpoenaed to testify before a federal grand jury. The following day, April 24, Loren-Maltese suspended them after they declined to answer questions put to them by Merrick Scott Rayle, a private attorney contracted to do work for the Town of Cicero, about their investigation and proposed grand jury testimony. Rayle subsequently investigated the towing scandal and submitted a report in which he exonerated all Town officials. In May 1998, Rayle filed dismissal charges against Niebur and Bue before the Board of Fire, Police, and Public Safety Commissioners (the "Police Board"). Bue was reinstated, but then fired in November 1998, supposedly because he had failed to comply with Cicero's residency requirement. Niebur was never reinstated.

Niebur and Bue filed this lawsuit under 42 U.S.C. § 1983 alleging various constitutional and state law causes of action. After a jury trial, the defendants were found liable for various violations of the plaintiffs' legal rights. Loren-Maltese and Rayle were found liable for violations of Niebur's and Bue's due process liberty interests in their jobs and for malicious prosecution. The Town of Cicero ("Cicero" or "the Town") was found liable for violations of the plaintiffs' First Amendment Rights, their due process property and liberty rights, breach of contract, retaliatory discharge, and malicious prosecution. The Board of Fire, Police, and Public Safety Commissioners (the "Police Board") was also found liable for several violations. The defendants were collectively taxed over a million and a half dollars in compensatory and punitive damages. Loren-Maltese, Rayle, the Town and the Police Board move for judgment as a matter of law under Fed. R. Civ. P. 50(b) or for a new trial under Rule 50(e) and (c). I grant the motions in part and deny them in part.

I. Loren-Maltese

A. Evidentiary Rulings

1. Introduction

In her 58-page brief ("Loren-Maltese JML Brief") and 49-page reply brief ("Loren-Maltese Reply Brief"),*fn2 Loren-Maltese argues that I made errors in excluding or admitting testimony and instructing the jury, the cumulative effect of which was to present a "skewed" picture of the defendants in a way that rendered the jury's verdict unreliable. Frymire-Brinati v. KPMG Peat Marwick, 2 F.3d 183, 188 (7th Cir. 1993). She contests dozens of my rulings, and also argues that I committed judicial misconduct, misunderstood or misapplied the law, and allowed the jury to return a verdict unsupported by sufficient evidence. I have tried to organize these arguments in a manageable way.

I begin with Loren-Maltese's challenge to rulings relating to the testimony of a number of witnesses.

2. Patrick Murphy's Expert Testimony

Loren-Maltese objects that I should have admitted the expert testimony of former New York Police Commissioner Patrick Murphy, which I barred as unreliable and unhelpful. See 136 F. Supp. 2d 915 N.D. Ill. 2001). She offers no reason why my opinion was wrong, instead merely asserting that his testimony was reliable and based on substantial facts and data. Normally one bald assertion is as good as another — but not when one party carries the burden of persuasion. . . . Olander v. Bucyrus-Erie Co., 187 F.3d 599, 608 (7th Cir. 1999).

3. Col. Robert Johnson

Loren-Maltese also argues that the prejudicial effect of excluding Murphy's testimony was aggravated because I erroneously denied her the opportunity to rebut the "opinion" testimony of Colonel Robert Johnson, formerly of the Illinois State Police (the "ISP"), who served as acting chief of police after May 1998, that the plaintiffs had done a good job as chief and deputy chief. She offers no citations to the record to support this argument, and thus waives it. See Groza v. I.N.S., 30 F.3d 814, 821 (7th Cir. 1994) (I need not "comb the record for meritorious claims" and "may require, as we do, that litigants not only raise, but also support their arguments, both factually and legally. [F]ailure to do so . . . results in waiver."). In any event I gave Loren-Maltese every opportunity to offer her views of the plaintiffs' accomplishments. The jury rationally did not accept the story that whatever limitations or defects existed in their job performance motivated Loren-Maltese to have them suspended and fired. Moreover, the plaintiffs do provide record cites, which show that Johnson gave a positive opinion based on personal knowledge, not opinion, about Bue's (not Niebur's) performance under his supervision, to which the defendants did not then object, see Trial Tr. at 1196-97, and so they have again waived the point.

Loren-Maltese asserts, without developing the argument or offering factual support or legal authority, that Col. Johnson should not have been allowed to testify that Bue had done a good job as deputy police chief, that he had made earnest efforts to comply with Cicero's residency requirement, that Clarence Gross (who has been dismissed as a defendant), had mismanaged many aspects of his job, and that Loren-Maltese should have removed Gross from all Town positions. Here, Loren-Maltese does not even attempt to explain how this testimony was unfair or prejudicial. See Freeman United Coal Mining Co. v. Office of Workers' Comp. Programs, 957 F.2d 302, 305 (7th Cir. 1992) ("[I] have no obligation to consider an issue that is merely raised . . . , but not developed in a party's brief."). In any event, the objection lacks merit. I have addressed Johnson's opinion of Bue's job performance above; Gross is no longer a party; and Loren-Maltese and the Board had ample opportunity to impeach Johnson's views about Bue's satisfaction of the residency requirement. See Trial Tr. at 1196-97.

4. William Bacon

Loren-Maltese objects that I allowed William Bacon to offer improper opinion testimony that Rayle's practice with respect to disciplinary matters was to "shoot first and ask questions later," and that Bue did a good job as deputy police chief. The statement about Rayle is opinion testimony, but not improper under Rule 701:

these were matters of which Bacon had first-hand knowledge and about which his view might be helpful to the jury. Bacon did not testify that Bue had done a good job as deputy, although if he had so testified that would be proper opinion testimony, but that he told Rayle that Bue "shouldn't be suspended." Trial Tr. at 1053.

5. Col. William Davis

Loren-Maltese argues Colonel William Davis of the ISP should not have been allowed to testify that no subpoena was required for the ISP to take records from the plaintiffs. This supposedly tainted the jury's view of the malicious prosecution charge by suggesting that there was no probable cause for disciplinary action against the plaintiffs. Fed. R. Evid. 701 permits opinion testimony by lay witnesses that is based on the (a) witnesses' perception, (b) helpful to a clear understanding of the facts, or (c) not based on technical knowledge. The issue was why the ISP had not obtained a search warrant or subpoena for these records. Davis testified that he thought that a subpoena was unnecessary because Niebur was the chief law enforcement officer of Cicero, and if anyone could give the ISP the records, it was Niebur. Trial Tr. at 958. This explanation was helpful to understanding the ISP's behavior, and it was within Davis' own first hand knowledge. The defendants cross-examined Davis on the matter, id. at 983-87, and argued that the decision was the Town's, and Niebur was not authorized to make it, Id. at 2020-21. Loren-Maltese was thus able to bring out any weaknesses in Davis's testimony. See United States v. Allen, 10 F.3d 505, 414 (7th Cir. 1993). I note as well that, as usual, I explained to the jury that I am the only authority in my courtroom on what the law is. There was no error here.

6. Lieutenant Casey

7. Niebur and Bue on their State of Mind

Loren-Maltese objects that I erred in permitting the plaintiffs to testify as to their states of mind as a result of hearsay. She does not identify any particular testimony that is objectionable, and so, because she has not even given me a clue as to what she was talking about, she has waived this objection insofar as she has made it at all. I note, however, that a statement not offered for the truth of the matter asserted is not hearsay. Fed. R. Evid. 301(c) Loren-Maltese asserts that the state of mind of the employee is irrelevant; "only the state of mind of the employer is at issue." At issue in what? Loren-Maltese doesn't say. She refers me to argument "below" with no specific cross reference. That's not good enough.

8. Niebur and Bue on the Scope of Their Job

Loren-Maltese objects that I erred in allowing Bue and Niebur to testify as to "the scope of their job," and in particular whether it included cooperating with other law enforcement agencies. She says that the error was that before trial I had "determined that the scope of Plaintiffs' employment was a matter of law." Loren-Maltese offers no citation for this. Neither does she explain what exactly I am supposed to have held the scope of their jobs to be. Moreover, she did not raise the objection at the appropriate time during trial. Trial Tr. at 1290-91. The objection is waived on multiple grounds, but would fail anyway. The defendants opened the door to it by arguing that the plaintiffs could not shelter behind the First Amendment because the communications with authorities were part of their duties. The defendants cannot object if Niebur and Bue rebutted their arguments about the scope of those duties.

9. Niebur and Loren-Maltese on Lawsuits against Former Employers

Loren-Maltese further objects that I wrongly excluded purported evidence that Niebur sued his superior in every town where he was previously employed, and excluded testimony from Loren-Maltese that she would not have hired Niebur had she known this beforehand. This does not accurately reflect the record. I permitted the defendants to explore the issue in opening statements and cross-examine Niebur over his lawsuits against his previous employers. Trial Tr. at 183-91, 196, 1411-16. I also permitted Loren-Maltese to testify that, had she known about Niebur's background, she would not have hired him. Trial Tr. at 1650-51, 1662. However, she also said that she had already decided to fire Niebur when she learned about these facts. This also deals with Loren-Maltese's claim that I barred her from testifying about her state of mind at the time she suspended the plaintiffs on April 24, 1998, and the information then available to her. See Loren-Maltese JML Brief at 16-17. The argument unsupported by record citations, and, as the record citations that I provide above indicate, the claim is simply false: I allowed Loren-Maltese to testify as to her state of mind and the information that she had.

10. Lisa Seno

Loren-Maltese argues that I erred in not permitting the testimony of Lisa Seno, a switchboard supervisor whom Loren-Maltese said would have backed up her story that Niebur ordered a switchboard operator to withhold information about how many police officers were on the streets of Cicero. (Loren-Maltese offered, as a legitimate reason for his suspension, that he did not have enough officers on the streets.) However, as plaintiffs argue, Seno was properly barred because she was not listed as a witness.

11. Juan Ochoa

Loren-Maltese says that I should have permitted the testimony of Juan Ochoa, President and Chairman of the Cicero MexicanAmerican Democratic Organization. She says that he would have rebuttad Niebur's version of the events at a Hispanic business-person's lunch, at which, she says, Niebur got drunk and made racist remarks, and this would have corroborated her own testimony. The testimony would, she says, also have countered a possible impression that Irene Saldana, discussed immediately below, spoke for the entire Hispanic community of Cicero. However, Niebur's testimony simply rebutted Loren-Maltese's testimony about the lunch, and Ochoa, presumably a corroborating witness for Loren-Maltese, was neither disclosed during discovery nor listed as a witness in the pretrial order.

12. Irene Saldana

In a similarly conclusory manner, Loren-Maltese objects that Irene Saldana, of the Interfaith Leadership Counsel of Cicero, offered improper opinion testimony when she said that Hispanics in Cicero "lost hope" when Niebur was fired. Again, Loren-Maltese does not explain why this opinion testimony was improper under Rule 701. Moreover, Loren-Maltese opened the door to such testimony by testifying that the Cicero Hispanic community was outraged by remarks Niebur made at a Hispanic businessman's lunch. Trial Tr. at 389. Saldana's testimony was offered in rebuttal. Id. at 740, 1206. See Hasham v. California State Bd. of Equalization, 200 F.3d 1035, 1050 (7th Cir. 2000) (No abuse of discretion when "defendant's line of questioning opened the door" to certain testimony)

13. Rosemarie Esposito

Rosemarie Esposito testified that she thought one of the owners of Ram Recovery was lying when he said that he could not provide the town with certain records because of a "computer glitch." Loren-Maltese asserts that this was improper opinion testimony. At trial, however, Loren-Maltese objected on grounds of immateriality. Trial Tr. at 1079-80. Because she did not raise the Rule 701 objection there, and because she does not explain it here, the objection is waived. See United States v. Biesiadecki, 933 F.2d 539, 544 & n.1 (7th Cir. 1991) ("A defendant cannot advance one reason for admitting evidence during trial and then advance a wholly separate basis for admission in post-trial submissions or on appeal. An evidentiary rationale not raised before the trial judge at the time of ruling is waived."); Led. R. Evid. 103(a) (1). The testimony was proper in any event under Rule 701, as it is based on first-hand knowledge and helpful to understanding the facts around Bue's requests for Ram Recovery records.

14. FBI Agent Stewart

15. Conversations with the FBI Agents

Loren-Maltese adopts Rayle's treatment of whether it was proper to allow Niebur to testify about the statements to him by the FBI. No record citation to this testimony is provided, and it is not quoted, merely paraphrased or described. I am "not obliged to guess at a party's meaning," Liu v. T & H Machine, Inc., 191 F.3d 790, 795 (7th Cir. 1999), or to "comb the record looking for the facts where a party has failed to provide specific citations." Bonds v. Coca-Cola Co., 306 F.2d 1324, 1328 (7th Cir. 1986). As the plaintiffs note, they cannot respond to an objection about testimony without knowing what testimony is supposedly objectionable. Rayle and Loren-Maltese refer generally to testimony that FBI agents advised the plaintiffs not to cooperate with the Town's investigation of Ram Recovery. Rayle, JML Brief at 28. Objections to any other statements are waived for lack of identifiability.

Contrary to what the defendants contend, first, the testimony about the FBI agents' statements was not hearsay, i.e., offered to prove the truth of the matter asserted, Fed. R. Evid. 801(c). The statements were rather offered to show the effect on the listener. United States v. Hanson, 994 F.2d 403, 406 (7th Cir. 1993). The truth of the statements did not matter. Moreover, as noted above, what the FBI agents in fact expressed was a wish, not an order, that the plaintiffs keep quiet.

Second, the defendants object that allowing the jury to hear the statements was error because there was no opportunity to cross-examine the agents on the subject at issue. They say that they were barred from doing this by an order entered by Chief Judge Aspen limiting their testimony because of then-ongoing grand jury proceedings. But the FBI's expressed wish that the plaintiffs not talk to anyone involved in the Town investigation was within the scope of matters into which the parties were permitted to inquire. Rayle and Loren-Maltese were free to cross-examine the agents on these topics before trial or at trial, and they did so. See Trial Tr. at 1035 ff. They have not in fact identified any matter into which they could not inquire that would be relevant to this case. At trial, virtually all their questions were answered. Moreover, even if they had not been free to inquire, that would not have mattered because, as noted above, the statements were offered for the effect on the listener and not for their truth, so the proper subject of cross examination would be the listeners — the plaintiffs. The issue was, "Did the statement have that effect on them?", and not, "Was the statement true?".

16. Oral Modification to Bue's Contract

Bue offered trial testimony about an oral modification to his employment contract that allowed him more time to find a place to live and come into compliance with the Cicero residence requirement. As noted below, the contract imposed a 90-day limit on the time during which he could live outside the Town. Bue said that, when it proved hard for him to sell his out-of-Town house, Loren-Maltese orally told him: "`Don't worry about that. That's what extensions are for.'" Trial Tr. at 666. She argues now that admitting this testimony was improper because it violated the parol evidence rule. However, parol evidence is prior or contemporaneous evidence that, in the ordinary circumstances, may not be used to get around the terms of an unambiguous and integrated contract. See Prentice v. UDC Advisory Services, Inc., 648 N.E.2d 146, 152 (Ill. App. Ct. 1995) (citing cases). Loren-Maltese says (without any citation to the record) that I held this contract to be unambiguous, although she does not say that I also held it to be integrated, and I never did. The objection is waived anyway because it was not raised at trial, see Trial Tr. at 592-93, 665-66, and it's manifest that the testimony was not parol evidence but evidence of a subsequent modification, and so admissible. "Parol evidence is admissible to establish a subsequent modification of a contract, and this rule has been applied to . . . written contracts." Land of Lincoln Sav. & Loan v. Michigan Ave. Nat'l. Bank of Chi., 432 N.E.2d 378, 384 (Ill. App. Ct. 1982).

17. Excluding Sam Jelic's Last-Minute Testimony

Sam Jelic was the Town's Superintendent of Public Works, and, while he was not a defendant here, he was involved in the events leading to the suspension and termination of the plaintiffs. He initially refused to testify, invoking at his deposition his Fifth Amendment privilege against self-incrimination even as to the name of his employer. I postponed trial for two weeks, in part so that Jelic could be deposed if he changed his mind about testifying. Following the continuance, his attorney informed counsel that he would still claim his Fifth Amendment privilege. Pretrial Conf. Tr., April 24, 2001, at 21. Suddenly, at trial, however, the Town claimed that Jelic was willing to testify, and if that if the plaintiffs refused to call him, they were not entitled to an instruction on an adverse inference. The defendants proposed to call him in their case if the plaintiffs did not use him as a witness. I declined to permit his last-minute testimony, and instructed the jury that they might infer from his non-appearance that his testimony would have been unfavorable to the Town.

Loren-Maltese fails to explain any error, saying only that the exclusion was harmful. She makes a claim about what he would have said, and asserts baldly that my ruling "improperly penalized individual defendants and affected the outcome of the trial." Nonetheless, the Seventh Circuit has held conclusively that if a party waives his privilege against self incrimination "just prior to trial," when the opposing party lacked "sufficient opportunity to obtain discovery," it would be "error [for me] to exclude [the witnesses'] prior silence because the effect of such a ruling would be tantamount to allowing the witness to avoid discovery altogether." Harris v. City of Chicago, 266 F.3d 750, 754 (7th Cir. 2001) (citing McGahee v. Massey, 667 F.2d 1357, 1362 (11th Cir. 1982) ("A defendant cannot have it both ways. . . . [He may not] testify in attack ...


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