56 F.Supp.2d 1010 (N.D.Ill. 1999), 98 C 5232, Hanania v. Loren-Maltese
| Docket Number | 98 C 5232 |
| Citation | 56 F.Supp.2d 1010 |
| Date | 12 May 1999 |
| Parties | Hanania v. Loren-Maltese |
| Court | U.S. District Court — Northern District of Illinois |
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Jonathan I. Loevy, Arthur R. Loevy, Chicago, IL, for Plaintiffs.
Terence Patrick Gillespie, Genson, Steinback & Gillespie, Chicago, IL, Sally H. Saltzberg, P. Michael Loftus, Loftus & Saltzberg, P.C., Chicago, IL, Michael Andrew Ficaro, Ross Edward Kimbarovsky, Hopkins & Sutter, P.C., Chicago, IL, for Defendants.
MEMORANDUM AND ORDER
MORAN, Senior District Judge.
Alison Resnick was the Cicero Town Collector and Ray Hanania, now her husband, was the Cicero town spokesman.
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They now sue the Town of Cicero; its President, Loren-Maltese; the members of the Board of Trustees; the Town of Cicero newsletter, The Cicero Town News; the Cicero Town Republican Organization, and its newsletter, The Cicero Town Observer (the Cicero defendants); and also Resnick's former attorneys, Jerome Torshen and Torshen, Spreyer, Garmisa & Slobig, Ltd. (the Torshen defendants). All defendants move to dismiss on a variety of grounds. The complaint and the briefs total more than 200 pages. Even so, many issues remain undeveloped and the multitude of issues creates some uncertainty that we will adequately deal with all of them. It may well be that we will have to consider some of them again. We are also mindful that the complaint reads somewhat like an exercise in investigative journalism and contains many irrelevancies, e.g., "It was widely believed..." and "It was also widely rumored..." (par. 36a), and that all parties have tended to introduce facts into their arguments that are not alleged in the complaint.
We turn, then, to a rather detailed recitation of the allegations of the complaint. Hanania was the "Cicero town spokesman" (which we understand to be the press secretary or media representative for the town) from 1993 to the fall of 1996. That fall a newspaper reported on an FBI investigation into alleged wrongdoing by Loren-Maltese in connection with a major insurance carrier for the town. Hanania urged her to explain that situation publicly (par. 21) and refused to defend or make excuses to the media about rampant corruption in the administration (par. 11), and she fired him on the spot on October 28, 1996. The following day Resnick asked Loren-Maltese at a meeting of the Board of Trustees to explain her involvement in the insurance matter, but she declined to do so. That same day Hanania and others contacted the Cook County State's Attorney's office about their suspicions. Shortly thereafter Resnick and another Cicero trustee introduced a resolution before the Board to request an investigation by the States Attorney. Loren-Maltese, instead, announced that she planned to hire a private attorney to conduct an investigation. Resnick objected.
Resnick was the Town Collector from February 1996 until the end of 1997. She was slated for that post for the April 1997 election, but was dropped from the ticket in November 1996, shortly after she introduced the resolution, for refusing to remain quiet about corruption in the administration. Resnick then, with others, formed an opposition slate known as the Restore Honesty in Cicero party (RHC), which lost in the February 1997 Republican primary. During the campaign Resnick, Hanania and others accused Loren-Maltese and her allies of wrongdoing, much of it of a criminal nature. The complaint describes sixteen instances of alleged corruption and other transgressions they talked about during that period. Beginning in December 1996, Loren-Maltese and the Board, which she controlled, began to retaliate. They eliminated the Town Collector's authority over business and pet licenses. Loren-Maltese, from December on, refused to accept the monthly statements submitted by Resnick. In May 1997 the Town Collector's operation was moved to smaller and inadequate quarters and Resnick was denied access to various files and equipment. Her responsibilities were transferred to the Collector-elect, and on June 2 two of her three employees were terminated.
Two days later, with the Torshen defendants as her lawyers, Resnick obtained a temporary restraining order in a state court chancery action enjoining Loren-Maltese from taking any action that impeded Resnick in the performance of her duties and requiring the retention of the two terminated employees. That order was thereafter extended. The Board then, at Loren-Maltese's direction, eliminated the two positions and passed eight ordinances on June 10, 1997, that effectively transferred collection responsibilities from
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the Town Collector to the Treasurer, an ally of Loren-Maltese. That led Judge Foreman, the chancery judge, to issue a rule-to-show-cause order a week later. In the meantime, Loren-Maltese had successfully avoided appearing for a deposition, and her deposition date and the response date for the rule to show cause were continued from time to time thereafter. A petition for limitation of the scope of discovery was denied August 11.
About that time Torshen advised Resnick that he had worked out a settlement. If she signed, Loren-Maltese had promised to allow her to complete her term without further interference. Torshen promised to defend her if Cicero sued her. He told her all agreed that it would be best if she stayed away from the bi-monthly Board meetings. On August 20, 1997, Resnick signed the settlement agreement, although it was materially different from the prior draft, and the suit was dismissed the following day. Apparently matters went on relatively smoothly for awhile. The complaint indicates that her duties remained restricted but that she had two employees and prepared monthly statements as best she could. Then, on December 9, 1997, three weeks before the end of her term, the Board declared a vacancy in the Town Collector's position and filled it, due to Resnick's "excessive unexcused absences" from Board meetings. That cost her three weeks salary plus three weeks accrued vacation time. She called Torshen, who negotiated two weeks vacation pay, and said there was nothing else he could do. At about the same time Cicero entered into a consent decree with the federal government to settle a housing discrimination suit brought by the Housing and Civil Enforcement Section of the Department of Justice. A Cicero press release on December 9, 1997, falsely stated that Judge Zagel had indicated Cicero would have been granted summary judgment but for a discriminatory comment attributed to Resnick. The Cicero Town News repeated that substance several times in late 1997 and in 1998, and Loren-Maltese included it in a special mailer distributed July 2, 1998. In 1997 The Cicero Observer falsely stated that Hanania, in a lawsuit between Loren-Maltese's party and the RHC slate, "lied on the stand, under oath, committing perjury." The complaint alleges two other false statements as well.
From these allegations plaintiffs advance nine claims. Before discussing each of the claims, we believe the relationship between the plaintiffs and the Torshen defendants requires some additional explanation. The settlement agreement is not attached to the complaint but it is referred to therein, and plaintiffs include it as an exhibit in one of their filings. Among other provisions it states as follows: "2. Plaintiff shall serve out her Term as Town Collector through December 31, 1997. She shall come to work and Board Meetings as appropriate and assist in the transition of her elected successor, whose Term commences January 1, 1998. She shall perform all the duties and functions of her appointive Office." In a subsequent paragraph Cicero agrees to refer to the Torshen firm its defense in what appears to be a wrongful death lawsuit. Plaintiffs assert that this was a payoff and that Resnick only owed about $1200 at the time. The Torshen defendants assert that they were owed about $40,000, that Resnick could not pay, that Cicero refused to pay Resnick's fees as part of the settlement, and the referral (which was discussed with Resnick) was a way to get the fees paid without expense to Resnick. Both are unverified assertions not alleged in the complaint, and neither is relied upon here.
In Count I, based upon 42 U.S.C. § 1983, plaintiffs allege that the Cicero defendants (but not including the Cicero Town Republican Organization) retaliated against them because of their exercise of their free speech rights. Those defendants move to dismiss for several reasons. They argue that the Town of Cicero must
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be out because plaintiffs have not sufficiently alleged an official policy or custom; that the speech related to personal disputes and, in Hanania's case, to a private disagreement over job performance; that Resnick was removed from office for failure to attend Board meetings; that even if the speech involved matters of public concern, the interests of Cicero in the efficiency of its public services trumps plaintiffs' interests; that defamation is not of constitutional significance; that The Cicero Town News and The Cicero Observer are not legal entities; that all individual Cicero defendants are entitled to absolute or qualified immunity; and that Resnick is barred from § 1983 recovery by the doctrine of collateral estoppel.
Some of those contentions need be only briefly discussed; others are more problematic. We believe that allegations of retaliation by both the...
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