Empress Casino Joliet Corp. v. Blagojevich
| Decision Date | 19 August 2013 |
| Docket Number | Case No. 09 C 3585 |
| Parties | EMPRESS CASINO JOLIET CORP., DES PLAINES DEVELOPMENT LTD. P'SHIP, HOLLYWOOD CASINO-AURORA, INC., and ELGIN RIVERBOAT RESORT-RIVERBOAT CASINO, Plaintiffs, v. ROD BLAGOJEVICH, FRIENDS OF BLAGOJEVICH, JOHN JOHNSTON, BALMORAL RACING CLUB, INC., MAYWOOD PARK TROTTING ASS'N, INC., ARLINGTON PARK RACECOURSE, LLC, FAIRMOUNT PARK, INC., and HAWTHORNE RACE COURSE, INC., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
The Court granted summary judgment in favor of defendants, concluding that plaintiffs had failed to offer admissible evidence from which a reasonable jury could conclude that defendants' alleged conspiracy to violate the RICO statute proximately caused their injury, a requirement for liability. See Aug. 7, 2013 Mem. Op. at 13-16. Plaintiffs have moved for reconsideration. The Court assumes familiarity with its August 7 decision.
Plaintiffs contend that defendants bribed former Governor Rod Blagojevich, making large contributions to his political campaign in exchange for ensuring adoptionof the 2006 and 2008 Racing Acts, which benefitted defendants. The Court concluded that plaintiffs had offered evidence from which a jury reasonably could find there was in fact a quid pro quo agreement but that they had not offered evidence from which a jury reasonably could find that this proximately caused the adoption of the two Racing Acts. In their motion for reconsideration, plaintiffs challenge the proximate cause ruling.
The Court begins with the 2008 Racing Act. The Court summarizes its proximate cause determination as follows:
See Mem. Op. at 16.
In their motion for reconsideration, plaintiffs claim that the Court "overlooked" evidence that they characterize as follows:
The Court notes initially that for this "overlooked" evidence, which they characterize as significant, plaintiffs cite paragraphs 24 through 31 of their statement of undisputed facts submitted pursuant to N.D. Ill. LR 56.1. See Mot. to Alter Judg. at 6-7. The Court notes, however, that although these references were contained within the more than 2,000 pages of materials submitted in connection with the summary judgment motions, plaintiffs did not cite them in their briefs or otherwise focus the Court on these particular contentions - which suggests that this evidence is not as compelling as plaintiffs now contend. See Pls.' Resp. in Opp. to Summ. Judg. at 11-13 (discussion of 2006 Racing Act events); id. at 19-21 (). In fact, this evidence in no way undermines or affects the Court's conclusion that the claim of proximate cause is speculative. The Court repeats what it said before: "Plaintiffs have offered no evidence that Blagojevich or others acting on his behalf influenced legislators to vote for this legislation." Mem. Op. at 16. All plaintiffs offer is temporal proximity between Johnston's promise of a bribe to Blagojevich and the legislature's passage of the 2008 Act. Any causal connection is speculative. The evidence plaintiffs citedbefore and now would not permit a reasonable jury to find the requisite proximate cause.
Plaintiffs' causation evidence regarding the 2006 Racing Act consists primarily of statements and testimony by two legislators, State Representative William Black and State Representative Brent Hassert. Both of these legislators made statements on the floor of the General Assembly to the effect that they understood that the governor's office was putting pressure on legislators to vote for passage of the Act and that some legislators were changing their votes as a result. See Mem. Op. at 3. Specifically, Black stated that legislators were being called to the governor's office and also said that a number of legislators had changed their votes. Hassert said that the governor had been calling legislators to ask them to vote for the legislation and that some votes had changed.
The Court concluded that Black's and Hassert's statements on the floor of the legislature were inadmissible hearsay. In this regard, the Court assumed that the record of the legislative proceedings was subject to a hearsay exception, specifically Federal Rule of Evidence 803(8), but stated that this Mem. Op. at 14 n.1. The Court concluded that no hearsay exception applied that would permit Black or Hassert's statements to be admitted.
In their motion for reconsideration, plaintiffs note that both Black and Hassert are available "to testify live about their observations" and contend that "this answers theOpinion's expressed concern about hearsay-within-hearsay." Mot. to Alter Judg. at 4. Plaintiffs do not, however, address the internal hearsay issue, other than to attempt to dismiss it with the back of their hand by saying that live testimony will cure any problems. See id. at 4-5. That is not the case. Black's deposition testimony, which the Court reviewed before and has reviewed again, reflects that all he observed was that he saw and heard a legislative staffer approach a representative to say that "the Governor and Speaker want you to come down to the Governor's Office right now," and heard a staffer (possibly the same one) tell a particular legislator (again, possibly the same one) that "[y]ou're wanted on the second floor," which is where the governor's office is located. Pls.' Ex. 52, Black Dep. at 82-83. Black also characterized it as "unusual for somebody to say verbally you're wanted on the second floor." Id. at 83. The Court assumes that this testimony might be admissible. Black observed the event(s) about which he testified, and the staffers' statement(s) are not hearsay because they were simply requests to do something and are not offered to show their truth. And Black's characterization of what he observed as unusual may well be an admissible lay opinion.
The Court also assumes that Hassert would testify at a deposition or at trial consistently with his statements on the General Assembly floor. But it is clear from the face of Hassert's statements that they are rank hearsay, not subject to any exception that would permit their admissibility: he stated that he had "hear[d] from somebody . . . that there's promises that have been made to support this Bill." Pls.' Statement of Undisputed Facts ¶ 54. Plaintiffs offer no argument, nor could they, that testimony by Hassert along these lines would be admissible in evidence.
Thus the only legislator testimony plaintiffs offer that might be admissible is thatof former Representative Black. Black's testimony, even taken together...
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