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NIEBUR v. TOWN OF CICERO
May 15, 2002
DAVID R. NIEBUR AND PHILLIP T. BUE, PLAINTIFFS,
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
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
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.
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).
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
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.
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.
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.
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.
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.
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
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)
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.
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?".
According to Loren-Maltese, I improperly prevented her from
"confronting" FBI Agents Stewart and Harnett during their depositions and
trial "as to the investigation that was allegedly conducted by the FBI"
with respect to the
defendants, thus preventing the defendants from
attacking the impression that the FBI had suspicions about them, and from
attacking the plaintiffs' case — as characterized by Loren-Maltese
— that the plaintiffs' actions were reasonable in the light of this
unconfronted "suspicion, rumor, and innuendo" testimony. (Naturally the
plaintiffs reject this characterization of their case, and correctly so.)
Loren-Maltese fails to offer any record citations that provide a factual
oasis for assessing whether the jury might have gotten that impression,
or to identify any legal basis for the argument. I can think of no legal
basis: the Confrontation Clause, for example, does not apply in a civil
context. Their interactions with The plaintiffs were fair game for either
party, but no party was permitted to ask the FBI agents about the scope
their investigations beyond a few questions concerning the fact that the
plaintiffs had been served with federal subpoenas. Trial Tr. at 1021-51.
Moreover, the defendants referred to the FBI investigation themselves.
Id. at 1996.
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 ...