Zilich v. Longo

• Decision Date: 03 November 1994
• Docket Number: No. 93-3511,93-3511
• Citation: 34 F.3d 359
• Parties: George ZILICH, Plaintiff-Appellee, v. Thomas LONGO; David Mack; Nancy Marincic; Rose Marie Lovano; Joseph Suster; Michael Abella; And Wilhelm Spiegelberg, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 359

34 F.3d 359

George ZILICH, Plaintiff-Appellee, v. Thomas LONGO; David Mack; Nancy Marincic; Rose Marie

Lovano; Joseph Suster; Michael Abella; And

Wilhelm Spiegelberg, Defendants-Appellants.

No. 93-3511.

United States Court of Appeals, Sixth Circuit.

Argued April 25, 1994.

Decided Sept. 1, 1994.

Rehearing and Suggestion for Rehearing

En Banc Denied Nov. 3, 1994.

J. Michael Murray, Berkman, Gordon, Murray, Palda & DeVan, Cleveland, OH, Patrick M. Flanagan, Savoy, Bilancini, Flanagan & Kenneally (argued and briefed), Elyria, OH, for George Zilich.

Frederick W. Whatley (argued), R. Todd Hunt, Walter, Haverfield, Buescher & Chockley, Cleveland, OH, for City of Garfield Hts, et al.

Marcia E. Hurt, Walter, Haverfield, Buescher & Chockley (briefed), Alan E. Johnson, Leo R. Ward, Smith R. Brittingham, IV (briefed), Ward & Associates, Cleveland, OH, for Thomas J. Longo, David E. Mack, Nancy J. Marincic, Rose Marie Lovano, Joseph Suster, Michael Abella and Wilhelm G. Spiegelberg.

Before: MERRITT, Chief Judge; and MILBURN and SILER, Circuit Judges.

MERRITT, Chief Judge.

The defendants, the mayor of a small Ohio town and other local officials, passed a city council resolution denouncing plaintiff, a former city council member, allegedly in retaliation for his political opposition to the mayor. The plaintiff also alleges threats of physical harm by defendants. Plaintiff filed suit under 42 U.S.C. Sec. 1983 making numerous claims, three of which--a bill of attainder claim and two types of First Amendment claims--are the subject of this interlocutory appeal. The district court denied defendants' summary judgment motion based on qualified immunity from liability on the claims. It held that there was a material dispute of fact on these three issues. To determine whether defendants are entitled to qualified immunity, we must decide as a preliminary matter if the resolution and ordinance in question could constitute (1) a bill of attainder or (2) a violation of plaintiff's First Amendment rights and (3) whether alleged threats of physical violence against plaintiff in retaliation for his political criticism could constitute a violation of his right of free speech by defendants under color of law.

I. Facts

The plaintiff, George Zilich, was formerly a member of the city council in Garfield Heights, Ohio. The defendants in this appeal are Thomas Longo, the mayor of Garfield Heights; David Mack and Wilhelm Spiegelberg, the law director and assistant law director; and Nancy Marincic, Rose Marie Lovano, Michael Abella and Joseph Suster, members of the city council who voted for the resolution and ordinance challenged by plaintiff.

After Zilich's election in 1989, the defeated incumbent claimed that Zilich failed to meet the city's three-year residency requirement to be a member of the council and filed suit to enjoin Zilich from taking office. The state court refused to enter an injunction on various grounds, one of which was that the city council is the sole judge of the qualifications of its own members. After taking office, several individuals attempted to challenge Zilich's qualifications before the council but the council refused to disqualify him. ¹

During his two-year term, Zilich was a thorn in the side of the mayor and his administration. He challenged the city's fiscal policies, its contract bidding procedures and the actions of the police and law departments, among other issues.

For purposes of this appeal, we assume the existence of the following facts:

During this same period, Zilich's home was vandalized, his tires were slashed, his car windows were shot out and he and his wife received anonymous phone calls threatening bodily harm. For example, just before a meeting on the mayor's budget proposal, an anonymous caller threatened "see you tonight asshole, you're a dead man." Around this same time, Thomas Furth, an assistant law director for the city, told Zilich about the mayor's increasing hostility toward him. In addition, a policeman investigating the shooting of Zilich's car told him that "these type things would stop if he would merely stop his criticisms and allegations against the mayor and the law department."

Furth actually attended meetings in which the mayor and others discussed silencing Zilich and provided detailed testimony about the serious nature of these threats. According to Furth, the mayor and his staff discussed slapping Zilich around, shooting him, hiring someone to break his legs, "cutting him" because he was a "bleeder" and tearing his throat out. These threats also involved terrorizing Zilich's family, and one specific plan included sexually assaulting Mrs. Zilich. The defendants maintain that all of these threats were "jokes," but Furth testified that none were made in a joking manner.

In 1991 Zilich did not run for reelection. On its first night of business, the new city council passed a resolution and ordinance ² stating that Zilich had violated the city charter's residency requirement and that he had never been qualified to hold office. The ordinance also authorized the law director to collect the salary paid to Zilich during his tenure. Zilich maintains that the resolution was part of the ongoing conspiracy to harass and intimidate him, and was meant to threaten him and to ruin his political career.

The district court viewed these events as related, inferring that the evidence supported a common conspiracy to ruin plaintiff's reputation and political future. It held that the resolution and ordinance constituted a bill of attainder and that their passage was in retaliation for plaintiff's exercise of his First Amendment rights. We conclude that the resolution and ordinance are not a bill of attainder and that their passage did not violate plaintiff's clearly established First Amendment rights; therefore, defendants are entitled to qualified immunity on these claims. If proven, however, the other allegations of harassment clearly would violate the First Amendment.

II. Bill of Attainder Claim

Zilich argues that the resolution and ordinance passed by the city council constitute a bill of attainder adopted in violation of Article I Sec. 10 of the Constitution ("No State shall ... pass any Bill of Attainder"). A bill of attainder is a "law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial." Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841, 846-47, 104 S.Ct. 3348, 3352, 82 L.Ed.2d 632 (1984) (quoting Nixon v. Administrator of General Services, 433 U.S. 425, 468, 97 S.Ct. 2777, 2802-03, 53 L.Ed.2d 867 (1977)). Thus, there are three essential elements to a bill of attainder: "specificity ..., punishment, and lack of a judicial trial." Selective Service, 468 U.S. at 847, 104 S.Ct. at 3352. Applying these factors, the court below found that "[t]he Resolution and Ordinance in question represents a classic case of a bill of attainder" and noted that "the Ordinance and Resolution was passed without the benefit of a trial, and remains an enforceable piece of legislation." The district court rejected the defendants' qualified immunity defense and held that the council was not judging the qualifications of one of its members, but instead sought "to deprive an individual of his property without the benefit of a trial." In doing so the court held that "the defendants' purpose in passing the legislation was punitive in nature."

We believe the district court misunderstands the situation for several reasons. First, the city council merely passed an ordinance authorizing the law director to go to court in order to recover amounts it considers illegally received by the plaintiff. The ordinance does not purport to confiscate or take title to any of Zilich's property. Whether the city actually recovers will depend entirely on a court judgment, not on a legislative usurpation of the judicial power to adjudicate an individual dispute. Because the ordinance simply authorizes the law director to seek collection of plaintiff's salary, "no feature of the challenged Act falls within the historical meaning of legislative punishment." Nixon, 433 U.S. at 475, 97 S.Ct. at 2806.

Second, Sec. 11 of the Garfield Heights City Charter says that the "Council shall be the judge of the election and qualifications of its members." This same power is also given to non-charter municipalities by a state statute which provides that "the legislative authority of a municipal corporation shall be the judge of the election and qualifications of its own members." Ohio Rev.Code Sec. 731.44. Both the charter and the state constitution reflect the well-settled principle that a legislature traditionally has the power to judge the so-called "standing" qualifications (age, residency, citizenship) of its membership. See generally Powell v. McCormack, 395 U.S. 486, 518-49, 89 S.Ct. 1944, 1962-79, 23 L.Ed.2d 491 (1969); Hitt v. Tressler, 4 Ohio St.3d 174, 447 N.E.2d 1299, 1302 (1983).

Plaintiff has not cited, and our research has not disclosed, a single case in which a court has held that judging a member's qualifications constitutes a bill of attainder. The Bill of Attainder Clause is a "safeguard against legislative exercise of the judicial function, or more simply--trial by legislature." Song v. Elyria, 985 F.2d 840, 844 (6th Cir.1993) (citation omitted). The "section proscribing bills of attainder ... establishes that there are certain types of decision that are ... inappropriate for legislative resolution.... [T]he bill of attainder clause should be viewed ... as necessary to the effective separation of powers." Note, The Bounds of Legislative Specification: A Suggested Approach to the Bill of Attainder Clause, 72 Yale L.J. 330, 343 (1962) (emphasis in original). The legislative act of judging one's own members cannot be deemed a matter inappropriate for legislative resolution when...