United States District Court, N.D. Illinois, Eastern Division
August 26, 2005.
AL SALAM MOSQUE FOUNDATION, Plaintiff,
CITY OF PALOS HEIGHTS, Defendants.
The opinion of the court was delivered by: JAMES ZAGEL, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Al-Salam Mosque Foundation, attempted to negotiate
the purchase of the Reform Church in Palos Heights so that it
could use the property as a mosque and school. Because it
believed that the Reform Church had received a special use permit
from Defendant, the City of Palos Heights, to use the property as
a church and school and that there would be zoning issues when it
occupied the building, Plaintiff included a rider to the contract
stating that the deal would be contingent on Plaintiff obtaining
written verification from the City that Plaintiff could use the
property as a mosque and school. Plaintiff requested this written
verification, and the City responded with some correspondence,
but provided no written verification. During this time, the City
Council offered Plaintiff $200,000 to buy the rights to purchase
the Reform Church property, which Plaintiff reluctantly accepted.
But, the City's Mayor, Mr. Koldenhoven, vetoed the Council's
offer. At that point, Plaintiff attempted to extend the contract
so that it could obtain written verification or a special use
permit; those requests were denied. Consequently, Plaintiff
exercised its option to nullify the contract based on lack of
zoning. Plaintiff filed suit alleging that Defendant interfered with
its free exercise of religion under the First Amendment,
42 U.S.C. § 1983, and the Illinois Religious Freedom Restoration
Act, 775 ILCS 35/15. After sitting through the week-long trial, a
jury returned a verdict in favor of Defendant. Plaintiff timely
filed this motion for a new trial pursuant to Fed.R.Civ.P. 59.
According to Rule 59, I may grant a new trial "if the verdict is
against the clear weight of the evidence or the trial was unfair
to the moving party." David v. Caterpillar, Inc., 324 F.3d 851,
863 (7th Cir. 2003); Miksis v. Howard, 106 F.3d 754, 757 (7th
Cir. 1997). However, the jury's verdict should be given
considerable deference. Latino v. Kaizer, 58 F.3d 310, 315 (7th
Cir. 1995). A district court may grant a new trial because the
verdict was against the weight of the evidence "only when the
record shows that the jury's verdict resulted in a miscarriage of
justice or where the verdict, on the record, cries out to be
overturned or shocks [the court's] conscience." Id. Moreover,
the jury's verdict should not be set aside merely because, in
reviewing the evidence, I may have reached a different result.
Id. This is especially true where the jury has based its
decision, at least in part, on the credibility of the witnesses'
testimony. Id. ("since the credibility of witnesses is
peculiarly for the jury, it is an invasion of the jury's province
to grant a new trial merely because the evidence was sharply in
The greatest challenge facing Plaintiff was proving that the
city itself acted in a way that interfered with Plaintiff's right
to the free exercise of religion. Under § 1983, municipal
liability may only be created by "acts that are, properly
speaking, acts `of the municipality' that is, acts which the
municipality has officially sanctioned or ordered." Pembaur v.
City of Cincinnati, 475 U.S. 469, 480 (1986). Even if some
actions by public officials may have caused Plaintiff to forego
the purchase of the Reform Church, those actions cannot create
liability for Defendant barring Defendant's sanction. For evidence that Defendant acted,
Plaintiff first points to a statement by then-Mayor Koldenhoven,
saying "the city was interfering by [Plaintiff's] actions."
However, Mr. Koldenhoven's statement is not dispositive. There
exists a rational basis in the record for the jury to conclude
that Mr. Koldenhoven's personal opinion regarding what
constitutes city action was not based on an accurate
understanding of the law.
Plaintiff next looks for city action in the statements made by
Alderman Corsi at a public hearing. Statements by public
officials at public hearings do not constitute city action unless
the speaker has "authority to adopt rules for the conduct of
government." Rasche v. Beecher, 336 F.3d 588, 599-600 (7th Cir.
2003) (quoting Auriemma v. Rice, 957 F.2d 397, 401 (7th Cir.
1992). Alderman Corsi did not have the authority to adopt rules
for the conduct of government without the votes of other aldermen
and, therefore, her statements do not constitute city action.
Even though Plaintiff characterizes Alderman Corsi's statements
as her "official word," those statements are Alderman Corsi's,
not Defendant's. Plaintiff further argues that Defendant
interfered with Plaintiff's First Amendment rights when the City
Council voted to offer Plaintiff $200,000 to forego the contract
to purchase the Reform Church. But, because of then-Mayor
Koldenhoven veto's, the offer was never effectuated.
Plaintiff also argues that Defendant acted by not responding to
a letter from Plaintiff's real estate attorney, Mr. Shalabi,
requesting information from the city.*fn1 Though Mr. Shalabi
testified that he never received a response to the letter, the jury was
free to assess his credibility and may have rejected his
testimony. Moreover, assuming Mr. Shalabi never received a formal
response, he did learn that the city attorney had informed the
Mayor that the zoning in Palos Heights would permit Plaintiff to
use the Reform Church as a mosque and a school. Based on the
evidence presented to the jury, it had a rational basis to
conclude that the mayor believed he had responded sufficiently to
the letter. Finally, the subtext of Plaintiff's argument is that
Defendant failed to respond prior to the closing date in the
contract to purchase the Reform Church, after which point a
response would be moot. It is possible that the jury found that
the period between Mr. Shalabi's letter and the closing date was
an unreasonable amount of time for Defendant to choose its course
of action or that Defendant was not bound to abide by the
deadline set in the real estate contract.
Plaintiff also tries to find city action in Defendant's failure
to provide Plaintiff with a zoning certificate. Defendant
maintains that a zoning certificate would be superfluous because
Plaintiff's intentions for the Reform Church were already
permitted under its current zoning. While Plaintiff may have felt
more comfortable moving in with a zoning certificate, the jury
was free to adopt Defendant's position that such a certificate
would have been legally redundant. Finally, Plaintiff implies that Defendant created confusion
regarding the zoning for the Reform Church by referring two
different zoning maps an older one and a newer one. Defendant
denies that there was any confusion, arguing that while some
individuals were confused, there was only one official map: the
most recent official map promulgated by Palos Heights. Even
assuming confusion existed, the clear weight of the evidence did
not prove that Defendant created the confusion or, if Defendant
did create the confusion, that it was done in order to interfere
with the free exercise of religion.
While Plaintiff remains unable to prove that Defendant acted to
interfere with Plaintiff's First Amendment rights, Plaintiff
advances several additional challenges to the jury's verdict.
First, Plaintiff challenges the credibility and plausibility of
statements made by former mayor Koldenhoven and Alderman Murphy.
Mr. Koldenhoven stated that he never saw the contract for the
sale of the Reform Church prior to the lawsuit. Plaintiff points
to a letter Mr. Koldenhoven sent in April 2000 discussing the
purchase price for the Reform Church and the fact that the
contract had contingencies. However, Mr. Koldenhoven testified
that while he had not seen the actual contract, he knew of some
of its terms through word-of-mouth.
Plaintiff next claims that Alderman Murphy lied when he said he
believed that Al-Salam was just like a church and could just move
into the Reform Church. At trial Alderman Murphy was impeached
with past statements where he had said that Al-Salam was
different than a church and that it could not just move into the
Reform Church. The jury may very well have concluded that
Alderman Murphy lied on the stand, but such a finding is not
incompatible with the verdict. Even though Alderman Murphy said
that a mosque is different from a church, his statements, like those of Alderman Corsi, are his own; they do not constitute city
action. Rasche, 336 F.3d at 599-600.
Plaintiff also argues that the length of deliberation (two to
three hours following about four full days of testimony)
indicates that the jury failed to adequately consider the
documents given to them and the testimony they witnessed.
Plaintiff cites no law to support this proposition probably
because the law on this point cuts the other way. See e.g.
United States v. Cunningham, 108 F.3d 120, 123-24 (7th Cir.
1997) (stating "the time it takes the jury to decide is not the
relevant factor. The weight of the evidence is."); Guar. Serv.
Corp. v. Am. Employers' Ins. Co., 893 F.2d 725, 729 (5th Cir.
1990) ("If the evidence is sufficient to support the verdict, the
length of time the jury deliberates is immaterial.") (quoting
Marx v. Hartford Accident & Indem. Co., 321 F.2d 70, 71 (5th
Finally, Plaintiff argues that the jury was prejudiced by
Defendant's attorneys mentioning that Al-Salam mosque was no
longer incorporated, contradicting the agreed statement of facts
which read that "the plaintiff is an Illinois corporation which
provides religious services and activities." A new trial may be
granted in the event of an error in the admission of evidence
"only if a significant chance exists that [it] affected the
outcome of the trial." Hasham v. Cal. State Bd. of
Equalization, 200 F.3d 1035, 1048 (7th Cir. 2000). There is not
a significant chance that the jury was affected by a single
mention of the fact that Plaintiff was no longer incorporated. It
is a minor point in this litigation, the significance of which
would be very unlikely to affect the opinions of a lay jury.
Furthermore, I read the agreed facts to the jury, and sustained
Plaintiff's objection to the question in which Defendant
mentioned that Al-Salam mosque was no longer incorporated. For the reasons stated herein, Plaintiff's Motion for a New
Trial is DENIED.
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