Tinleysparks, Inc et al v. Village of Tinley Park et al

Filing 117

Enter MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 5/11/2015. Mailed notice (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

TINLEYSPARKS, INC., et al.
Plaintiffs,
v.
VILLAGE OF TINLEY PARK, et
al.

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No. 14 C 853

Defendants.

MEMORANDUM OPINION AND ORDER
This case is about a political struggle in the Village of
Tinley Park, Illinois (“Tinley Park” or “Village”) between its
longtime mayor and his allies, on the one hand, and two Village
residents who ran for local office in April 2013 and lost.
The two losing candidates and their political organization
have filed suit against the Village, the mayor, and seventeen of
his supporters under 42 U.S.C. § 1983 alleging that Defendants
misappropriated public funds (Count I), suppressed political
speech (Counts II through V), and tortuously interfered with
their prospective economic advantages (Count VI).
Defendants have moved to dismiss the complaint for lack of
standing and failure to state a claim upon which relief may be
granted.

The individual Defendants also argue that they are

1

entitled to qualified immunity.

I grant Defendants’ motion only

in part for the reasons stated below.
I.
At the motion to dismiss stage, I must accept Plaintiffs’
factual allegations as true and draw all reasonable inferences
in their favor.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A.

TinleySparks, Inc. (“TinleySparks”) is a non-profit
corporation formed in 2010 to promote civic and political causes
in Tinley Park.

See Dkt. No. 80 (“Am. Compl.”) at ¶ 7.

Stephen

E. Eberhardt (“Eberhardt”), a local attorney who ran for mayor
in April 2013, is the President of TinleySparks.

Id. at ¶ 8.

Karen Weigand (“Weigand”), who ran for a seat on the Village’s
Board of Trustees in April 2013, is the Vice President of
TinleySparks.

Id. at ¶ 9.

Edward J. Zabrocki, Jr. (“Zabrocki”) has been the Mayor of
Tinley Park since 1981.

He also leads a political organization

that was known as “Team Tinley 2013” during the April 2013
election cycle.

Id. at ¶ 11.

The Village Clerk, Patrick Rea,

and four of the six Village Trustees--David Seaman, Gregory
Hannon, Brian Maher, and Terrance “T.J.” Grady--ran as Team
Tinley candidates in April 2013 and won reelection.
12-16.

Id. at ¶¶

The other two Village Trustees--Thomas Stanton and

Patricia Leoni--were appointed or selected to run for office by
2

Zabrocki, but are not alleged to have been Team Tinley
candidates in April 2013.

Id. at ¶¶ 17-18.

Team Tinley’s supporters include two political committees,
“Citizens for Ed Zabrocki” and “Citizens to Elect Tinley Park
Village Officials,” both of which receive contributions from
businesses seeking Village contracts or other financial rewards.
Id. at ¶¶ 11, 32.

Until March 2013, Ronald and Judy Bruning

(“the Brunings”) served as the Chairperson and
Secretary/Treasurer, respectively, of the two political
committees supporting Team Tinley.

Id. at ¶¶ 19-20.

The

Brunings own a floral business in Tinley Park, but also work for
the Village.

Id. at ¶ 20.

Ronald Bruning is the Village’s

Zoning Administrator while Judy Bruning works as Zabrocki’s
personal assistant.

Id. at ¶¶ 19-20.

Martin Ward, who chairs

the Village’s economic development commission, replaced Ronald
Bruning as Chairperson of “Citizens to Elect Tinley Park Village
Officials” in March 2013.

Id. at ¶¶ 26, 32(d).
B.

The complaint describes a series of incidents before and
after the April 2013 election in which Zabrocki and his
political allies allegedly used taxpayer funds to promote Team
Tinley candidates (Count I) and suppressed political speech at
various public events (Counts II and III) and in online forums
(Counts IV and V).
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1.
In Count I, Eberhardt and Weigand allege that the Village,
Zabrocki, the Village Clerk, the six Village Trustees, and Judy
Bruning misappropriated public funds in violation of the Due
Process Clause by (1) using taxpayer money to conduct a
political rally for Trustee Gregory Hannon in January 2012 when
he announced his candidacy for the Illinois Senate in the Tinley
Park Village Hall; (2) using their official, taxpayer-funded
portraits in Team Tinley campaign materials before the April
2013 election; (3) using taxpayer money to commission a Village
report, which “Citizens to Elect Tinley Park Village Officials”
later used to attack Eberhardt and Weigand, on the cost of
complying with Plaintiffs’ requests under the Illinois Freedom
of Information Act; and (4) allowing Judy Bruning to engage in
political activities on Village work time.

Id. at ¶¶ 35-52.

2.
Count II lumps together six incidents leading up to the
April 2013 election in which Zabrocki and his allies allegedly
suppressed opposing political speech: (1) from June 2012 through
August 2012, Ellen Clark (“Ms. Clark”), the appointed
Chairperson of various public events in downtown Tinley Park,
prohibited unnamed “volunteers” from circulating a petition at
the Tinley Park Farmers’ Market to have a term limits referendum
question placed on the ballot for the November 2012 general
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election despite the fact that Ms. Clark had personally
circulated nominating petitions for Zabrocki and other Team
Tinley candidates at the same event, id. at ¶¶ 24, 55-58; (2) on
October 28, 2012, Ms. Clark directed Plaintiffs’ volunteers to
stop circulating nominating petitions for Eberhardt and Weigand
at the “Halloween Kiddie Boo-Bash,” id. at ¶¶ 59-62; (3)
starting in October 2012, Marge Weiner, the appointed head of
the Senior Services Commission who runs the Tinley Park Senior
Center in a publicly owned building, prohibited Eberhardt and
Weigand from engaging in political activities at Senior Center
events even though she had personally circulated a nominating
petition on Zabrocki’s behalf at the Senior Center and allowed
Zabrocki and Village Trustee Patricia Leonia to campaign at
Senior Center events and, id. at ¶¶ 27, 63-73; (4) in early
2013, Thomas “Doc” Mahoney, who served as President of the
Tinley Park Chamber of Commerce, denied Plaintiffs’ requests to
host a “Candidates’ Forum,” but later agreed to host such a
forum before the March 2014 primary elections in which Eberhardt
and Weigand were not candidates, id. at ¶¶ 28, 74-78; (5) in
March 2013, after the Village removed a Team Tinley sign from a
public park in response to Eberhardt’s complaint, Ronald
Bruning, the Village’s Zoning Administrator, instructed private
citizens to remove Plaintiffs’ campaign signs from their private
property, id. at ¶¶ 79-83; and (6) in April 2013, three days
5

before the election, Village Trustee Brian Maher threatened
Norman Elftmann, a local restaurant owner, for displaying a sign
supporting Eberhardt in his front yard, id. at ¶¶ 84-85.
3.
Count III focuses on Plaintiffs’ efforts to engage in
political speech at the “Discover Tinley Community Awareness
Expo” (“Expo”) held on March 23, 2013.

The Village hosts the

annual Expo at the Tinley Park Convention Center.

Id. at ¶ 88.

In January 2013, Eberhardt received a solicitation to
participate in the upcoming Expo, whose stated goal was to
“provide an opportunity for businesses and organizations to
showcase the services available to our community.”

Id. at ¶ 89.

The Expo reservation form expressly stated, however, that “no
political groups or campaigning will be permitted at this
event.”

Id.

On February 8, 2013, the Village rejected

Plaintiffs’ request for booth space at the Expo on the ground
that “the prohibition on political activity at this event will
be enforced against all participants, including incumbents
running for office.”

Id. at ¶ 92.

Meanwhile, the Village was allowed to have a highly visible
booth at the 2013 Expo near the main entrance with a larger
banner referring to Zabrocki and four other Team Tinley
candidates.

Id. at ¶ 93.

These candidates posed for a

photograph in front of the Village booth, which Team Tinley then
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posted on its Facebook page along with the message: “Meet and
Greet Team Tinley today at the Discover Tinley Community Expo.”
Id. at ¶ 96, Ex. J.

Plaintiffs claim that denying them booth

space at the 2013 Expo while simultaneously allowing Zabrocki
and his allies to campaign at the event violated their
constitutional rights.
4.
In Count IV, Plaintiffs allege that Zabrocki, the Village
Clerk, the Village Trustees, and two other Village employees
unlawfully suppressed their speech on a Village-sponsored
website.

The Village has established a Main Street Commission

(“MSC”) to promote small business growth in an area designated
as “Downtown Tinley.”

Id. at ¶ 108.

Donna Framke (“Framke”) is

the Village’s Marketing Director and serves as the Staff Liaison
to the MSC.

Id. at ¶ 21.

Zabrocki appointed Michael Clark and

Richard Butkas, both of whom are Team Tinley supporters, to the
MSC.

Id. at ¶¶ 23, 25.
In April 2011, the Village contracted with a marketing

company run by Cathy Maloney (“Maloney”) to assist the MSC.
at ¶ 110.

Id.

Maloney subsequently developed a website and a

Facebook page for Downtown Tinley.

Id. at ¶ 111.

In October

2012, Maloney told Eberhardt that his law firm could no longer
post on the Downtown Tinley Facebook page because such posts
were considered political messages in light of Eberhardt’s
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campaign for mayor.

Id. at ¶ 113.

Maloney then deleted prior

posts by Eberhardt’s law firm and refused to recognize
TinleySparks as a contributor on the Downtown Tinley website.
Id. at ¶¶ 114-15.
About one month later, in November 2012, the MSC announced
a new “website sponsorship structure” that would allow
participating businesses to reach a broader audience via an
expanded website, an electronic newsletter, and e-mail features.
Id. at ¶ 117.

Plaintiffs allege that Zabrocki and his allies

delayed implementation of the MSC’s new sponsorship program
until after the April 2013 elections to prevent Plaintiffs from
communicating their views to a larger audience.

Id. at ¶ 118.

The MSC finally launched the new sponsorship program in August
2013.

Id.

Eberhardt informed Donna Framke, the Village’s

Marketing Director, that TinleySparks wanted to participate in
the program and paid the required fee.

Id. at ¶¶ 121-22.

In

October 2013, Framke told Eberhardt that the MSC was not moving
forward with the sponsorship program due to lack of
participation and returned TinleySparks’s participation fee.
Id. at ¶ 123.
The final incident described in Count IV is Mahoney’s
failure to attribute donations to TinleySparks (as opposed to
Eberhardt’s law firm) in two Downtown Tinley newsletters sent in
January 2014.

Id. at ¶¶ 126-29.

Maloney failed to correct the
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error when Eberhardt brought it to her attention even though she
promptly corrected a similar error regarding MSC Chairman
Michael Clark’s business.

Id. at ¶¶ 130-32.
5.

Count V alleges that Plaintiffs were subjected to
“censorship” and “disparate treatment” on the Downtown Tinley
Facebook page.

In September 2013, the MSC established a policy

that removed service businesses such as Eberhardt’s law firm and
TinleySparks from the list of users who could post directly to
the Downtown Tinley Facebook page and established a “Social
Media Subcommittee” to review proposed posts.

Id. at ¶¶ 141-45.

After this policy was adopted, the Social Media Subcommittee
refused to share TinleySparks’s posts relating to term limits
and a small business event in November 2013 and a series of
posts relating to public safety in January 2014.

Id. at ¶¶ 156-

64.
6.
Count VI alleges that Richard Butkus, Ellen and Michael
Clark, and Cathy Maloney tortuously interfered with Eberhardt’s
and TinleySparks’s “reasonable expectancy that their reputation
and visibility would be enhanced, consequently resulting in new
clients.”

Am. Compl. at ¶ 171.

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7.
In Count VII, Plaintiffs seek a specific injunction against
all Defendants.

This is a demand for relief rather than a

separate legal claim.

See Fed. R. Civ. P. 8(a)(2)-(3)

(distinguishing between “claim[s]” and “demand[s] for relief”).
Therefore, Count VII will be dismissed.
C.
In their motion to dismiss, Defendants argue that (1)
Plaintiffs lack standing to bring Counts I through V; (2) Counts
I, II, III, and VI fail to state claims upon which relief can be
granted; and (3) the individual Defendants are entitled to
qualified immunity.

As a housekeeping matter, the individual

Defendants also argue that the claims brought against them in
their official capacities are redundant with claims against the
Village.

Defendants are correct about this point of law, see

Sanville v. McCaughtry, 266 F.3d 724, 732 (7th Cir. 2001), so I
grant their motion to dismiss the official capacity claims.
II.
I start with Defendants’ facial challenge to standing,
which requires me to accept the complaint’s allegations as true.
See Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440,
443-44 (7th Cir. 2009) (distinguishing between facial and
factual challenges to Article III standing).

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To establish standing under Article III of the
Constitution, Plaintiffs “must have suffered or be imminently
threatened with a concrete and particularized ‘injury in fact’
that is fairly traceable to the challenged action of
[Defendants] and [is] likely to be redressed by a favorable
judicial decision.”

Lexmark Int’l, Inc. v. Static Control

Components, Inc., 134 S. Ct. 1377, 1386 (2014) (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992)).

“At the

pleading stage, general factual allegations of injury resulting
from [Defendants’] conduct may suffice, for on a motion to
dismiss we presume that general allegations embrace those
specific facts that are necessary to support the claim.”

Lujan,

504 U.S. at 561 (internal quotation omitted).
A.
With regard to Counts I and III, Defendants argue that
Plaintiffs have failed to allege a concrete and particularized
injury because their claims are indistinguishable from any other
Village taxpayer who might object to how public funds were
spent.
The Supreme Court has long “rejected the general
proposition that an individual who has paid taxes has a
‘continuing, legally cognizable interest in ensuring that those
funds are not used by the Government in a way that violates the
Constitution.’”

Ariz. Christian Sch. Tuition Org. v. Winn, 131
11

S. Ct. 1436, 1442-43 (2011) (quoting Hein v. Freedom From
Religion Foundation, Inc., 551 U.S. 587, 599 (2007) (plurality
opinion)).

The rationale behind the general rule against

taxpayer standing is that an allegedly unconstitutional
expenditure of public funds “does not give rise to the kind of
redressable ‘personal injury’ required for Article III
standing.”

Hein, 551 U.S. at 599.

As Plaintiffs point out,

however, “the interest of federal taxpayers with respect to the
federal treasury [is] ‘very different’ from that of a municipal
taxpayer challenging an allegedly illegal use of municipal
funds.”

Hinrichs v. Speaker of House of Representatives of

Indiana General Assembly, 506 F.3d 584, 591-92 (7th Cir. 2007)
(quoting Frothingham v. Mellon, decided with Massachusetts v.
Mellon, 262 U.S. 447, 487 (1923)).

“The interest of a taxpayer

of a municipality in the application of its moneys is direct and
immediate and the remedy by injunction to prevent their misuse
is not inappropriate.”

Frothingham, 262 U.S. 486; see also

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 349 (2006)
(reiterating distinction recognized in Frothingham between
municipal taxpayers, on the one hand, and federal and state
taxpayers).
It follows from these cases, which Defendants have not
addressed or attempted to distinguish, that Plaintiffs have

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standing to challenge the expenditure of municipal taxpayer
funds on constitutional grounds.
B.
With regard to Count II, which lumps together six incidents
of alleged interference with political speech, Defendants argue
that Plaintiffs have failed to allege how they were personally
injured by any these incidents.

See Lujan, 504 U.S. at 560 n.1

(alleged injury must be “particularized” in the sense that it
“affect[s] [Plaintiffs] in a personal and individual way”).
Only one of the incidents alleged in Count II fails the
particularized injury requirement.

Recall that Ellen Clark

allegedly prohibited unnamed volunteers from circulating a
petition at the Tinley Park Farmer’s Market to have a term
limits referendum question placed on the ballot for the November
2012 election.

Plaintiffs have failed to explain how this

alleged infringement of the petitioners’ free speech rights
injured them in a personal way.

Plaintiffs may have supported

term limits too, but they cannot sue to vindicate someone else’s
First Amendment rights rather than their own.

See Powers v.

Ohio, 499 U.S. 400, 410 (1991) (“In the ordinary course, a
litigant must assert his or her own legal rights and interests,
and cannot rest a claim to relief on the legal rights or
interests of third parties.”).

13

Plaintiffs cite SSDD Enterprises, Inc. v. Village of
Lansing, 1998 WL 326727, (N.D. Ill. June 12, 1998) (Pallmeyer,
J.), for the proposition that “the rules of third-party standing
are considerably relaxed, so much so that if a party establishes
the threshold requirement of ‘injury in fact’...it may freely
assert the First Amendment rights of others.”

Id. at *10 n.23

(citing Secretary of State of Maryland v. Joseph H. Munson Co.,
467 U.S. 947, 956–57 (1984)).

This citation simply begs the

question of how Plaintiffs were personally injured by Ellen
Clark’s refusal to allow supporters of a term limit referendum
to collect signatures at public events in Tinley Park.
In contrast, Plaintiffs were injured in a personal way when
(1) Ellen Clark allegedly prohibited campaign volunteers from
circulating nominating petitions for Eberhardt and Weigand at
the Hallowwen Kiddie Boo-Bash in October 2012; (2) Marge Weiner
allegedly prohibited Eberhardt and Weigand from campaigning at
the Tinley Park Senior Center; (3) Doc Mahoney allegedly
rejected Eberhardt’s request for the Tinley Park Chamber of
Commerce to host a “Candidates’ Forum”; (4) Ronald Bruning
allegedly ordered some of Plaintiffs’ political supporters to
remove campaign signs from their private residences; and (5)
Village Trustee Brian Maher allegedly threatened a local
restaurant owner in April 2013 for displaying one of Eberhardt’s
campaign signs.

All of these incidents plausibly hampered
14

Plaintiffs’ campaigns for local office by making it harder for
them to get on the ballot, interact with voters, and show that
they had visible support in the community.
C.
In Count III, Plaintiffs allege that they were prohibited
from campaigning at the Discovery Tinley Expo in March 2013
while Zabrocki and other Team Tinley candidates were allowed to
campaign near the main entrance of the event.
¶¶ 91-92, 97.

See Am. Compl. at

Defendants’ argument that Plaintiffs were not

harmed by this alleged viewpoint discrimination in deciding who
could campaign at the Expo is frivolous.

Plaintiffs clearly

lost the opportunity to interact with voters and spread their
political message at a major public event.
D.
Defendants argue that Plaintiffs lack standing to bring
Count IV for two reasons: (1) only Eberhardt’s law firm--rather
Eberhardt himself--was injured when Cathy Maloney instructed him
to stop posting on behalf of his firm on the Downtown Tinley
Facebook page, deleted his earlier posts, and removed the firm
from the list of sponsors on the Downtown Tinley website and (2)
although Count IV alleges wrongful actions directed at
TinleySparks--i.e., delayed implementation of the MSC’s new
sponsorship program until after the April 2013 election and
failing to recognize TinleySparks as a prize donor in a Downtown
15

Tinley newsletter--Plaintiffs did not suffer any injury as a
result of these actions.
Plaintiffs counter that Eberhardt’s law firm is a sole
proprietorship rather than a separate legal entity, so he must
be allowed to sue for any harms his business suffered.

Indeed,

Defendants have not cited any cases in which a court has applied
the rule that “prohibits shareholders from suing to enforce the
rights of the corporation” to an unincorporated sole
proprietorship.

Rawoof v. Texor Petroleum Co., Inc., 521 F.3d

750, 754 (7th Cir. 2008).

Therefore, Eberhardt has standing to

sue for injuries that his law firm allegedly suffered.
As for Defendants’ argument that Plaintiffs cannot sue for
injuries suffered by TinleySparks, I note that TinleySparks is
one of the named plaintiffs in this suit.

“[T]he presence of

one party with standing is sufficient to satisfy Article III's
case-or-controversy requirement.”

Rumsfeld v. Forum for

Academic and Institutional Rights, Inc., 547 U.S. 47, 52 n.2
(2006).

TinleySparks was undoubtedly injured if, as alleged in

Count IV, Cathy Maloney deliberately deprived the organization
of a forum for communicating with Village residents and of
public recognition for a donation.

This is not to say that

Count IV states a plausible constitutional claim.

I hold only

that TinleySparks has alleged a plausible Article III injury in
Count IV of the amended complaint.
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E.
Defendants’ final standing argument is that Count V fails
to allege an injury in fact because TinleySparks was supposedly
allowed to post on the Downtown Tinley Facebook page ever after
the MSC’s Social Media Subcommittee implemented a new screening
procedure in September 2013.
This argument overlooks the complaint’s allegations that
(1) TinleySparks was forced to file complaints before four of
its posts were shared on the Downtown Tinley page in November
2013 whereas other businesses did not encounter similar
resistance, see Am. Compl. at ¶¶ 154-55, and (2) the Social
Media Subcommittee’s outright refusal to share TinleySparks’s
posts about Zabrocki’s comments on term limits, a “Small
Business Saturday” event, and various public safety messages,
id. at ¶¶ 156-60, 162, 164.

Accepting these allegations as

true, TinleySparks was plausibly injured by the Social Media
Subcommittee’s actions.
In sum, Defendants’ standing arguments fail across the
board with the exception of the incident in Count II where Ellen
Clark allegedly prohibited unnamed volunteers from circulating a
petition on term limits at two public events.

17

III.
Defendants’ next set of arguments challenge the legal
sufficiency of certain counts in the complaint.

A complaint is

legally sufficient when it alleges “facts sufficient to show
that [each] claim has substantive plausibility.”

Johnson, 135

S. Ct. at 347.
A.
With regard to Count I, Defendants argue that Plaintiffs
have failed to state a plausible claim because they do not have
a protected property interest in municipal taxpayer funds.
“[I]n any due process case where the deprivation of
property is alleged, the threshold question is whether a
protected property interest actually exists.”

Cole v. Milwaukee

Area Tech. Coll. Dist., 634 F.3d 901, 904 (7th Cir. 2011).
“Property interests are not created by the Constitution but
rather ‘they are created and their dimensions are defined by
existing rules or understandings that stem from an independent
source such as state law.’”

Id. (quoting Bd. of Regents v.

Roth, 408 U.S. 564, 577 (1972).

“A protected property interest

exists only when the state's discretion is ‘clearly limited such
that the plaintiff cannot be denied the interest unless specific
conditions are met.’”

Booker-El v. Superintendent, Ind. State

Prison, 668 F.3d 896, 900 (7th Cir. 2012) (quoting Brown v. City
of Michigan City, Ind., 462 F.3d 720, 729 (7th Cir. 2006)).
18

Plaintiffs rely on Article VII, Section 1(a) of the
Illinois Constitution as the source of their protected property
interest in municipal taxpayer funds.

See Am. Compl. at ¶ 36.

That provision states that “[p]ublic funds, property or credit
shall be used only for public purposes.”
§ 1(a).

Ill. Const. Art. VIII,

The Illinois Supreme Court “has long recognized that

what is for the public good and what are public purposes are
questions which the legislature must in the first instance
decide.

In making this determination, the legislature is vested

with a broad discretion, and the judgment of the legislature is
to be accepted in the absence of a clear showing that the
purported public purpose is but an evasion and that the purpose
is, in fact, private.”

In re Marriage of Lappe, 680 N.E.2d 380,

388 (Ill. 1997) (internal citations omitted).
The question at this stage is whether Plaintiffs have
plausibly alleged that the four expenditures of taxpayer funds
described in Count I lacked a public purpose and served purely
private interests.

Plaintiffs object to the use of taxpayer

funds to (1) support Village Trustee Gregory Hannon’s political
rally announcing his candidacy for the Illinois Senate; (2)
commission official portraits of Village officials that were
later used in campaign materials; (3) pay for a report on the
cost of complying with Illinois Freedom of Information Act
requests that was later used to attack Eberhardt and Weigand for
19

wasting government money; and (4) allow Judy Bruning to do
political tasks for Zabrocki and his allies on Village work
time.

It is at least plausible that Defendants sought to

advance their private political objectives rather than any
public purpose in each of these instances.

Whether Plaintiffs

can support these allegations with evidence is a question for
another day.
In sum, Plaintiffs’ have stated a plausible due process
claim based on their allegations that Defendants spent municipal
taxpayer funds to advance their private interests without any
corresponding public benefit.
B.
Defendants argue that Count II should be dismissed under
Rule 12(b)(6) because two of the individuals who allegedly
violated Plaintiffs’ free speech rights, Ellen Clark and Doc
Mahoney, are not state actors.
“Anyone whose conduct is ‘fairly attributable to the state’
can be sued as a state actor under § 1983.”

Filarsky v. Delia,

132 S. Ct. 1657, 1661 (2012) (quoting Lugar v. Edmondson Oil
Co., 457 U.S. 922. 937 (1982)).

The Supreme Court has

established “a two-part approach to this question of ‘fair
attribution.’”

Lugar, 457 U.S. at 937.

First, the deprivation must be caused by the exercise
of some right or privilege created by the State or by

20

a rule of conduct imposed by the state or by a person
for whom the State is responsible.
Second, the party charged with the deprivation must be
a person who may fairly be said to be a state actor.
This may be because he is a state official, because he
has acted together with or has obtained significant
aid from state officials, or because his conduct is
otherwise chargeable to the State.
Without a limit
such
as
this,
private
parties
could
face
constitutional litigation whenever they seek to rely
on some state rule governing their interactions with
the community surrounding them.
Id. (paragraph break added).
According to the complaint, Zabrocki appointed Ellen Clark
as the Chairperson of various public events in Tinley Park,
including the “Halloween Kiddie Boo-Bash” in October 2012.
Am. Compl. at ¶¶ 24, 62.

See

Defendants argue that Ellen Clark is

not a state actor, yet they completely overlook the fact that
she was appointed by the mayor, i.e., she exercised a “right or
privilege created by the [Village].”

Lugar, 457 U.S. 937.

Moreover, when Ellen Clark prohibited Plaintiffs’ campaign
volunteers from circulating nominating petitions at the
“Halloween Kiddie Boo-Bash,” she plausibly gave this order
pursuant to her authority as Zabrocki’s appointed organizer of
the event.

In light of these allegations, I cannot say as a

matter of law that Ellen Clark was a private actor who falls
outside the ambit of Section 1983.
The same is not true of Doc Mahoney, who allegedly refused
to schedule a “Candidates’ Forum” sponsored by the Tinley Park
21

Chamber of Commerce before the April 2013 election.

Plaintiffs

say nothing about how Mahoney became President of the Chamber of
Commerce.

Therefore, I have no basis for inferring that

Mahoney’s position was a “right or privilege created by the
[Village]” as opposed to a purely private endeavor.
U.S. 937.

Lugar, 457

Indeed, Plaintiffs have not even attempted to explain

why Doc Mahoney should be considered a state actor in their
response brief.

Therefore, I grant Defendants’ motion to

dismiss him from Count II.
C.
With regard to Count III, Defendants argue that Plaintiffs’
own allegations show that the ban on political activity at the
Expo was enforced without regard to a speaker’s viewpoint.

This

argument ignores Plaintiffs’ allegations that Zabrocki and other
Team Tinley candidates were allowed to “campaign and engage in
political activity at [the Expo]” from a booth near the main
entrance.

See Am. Compl. at ¶ 97.

Having allegedly turned the

Discovery Tinley Expo into a forum for some political
campaigning, Defendants could not engage in viewpoint
discrimination.

See Perry Educ. Ass’n v. Perry Local Educators’

Ass’n, 460 U.S. 37, 46 (1983).

Yet that is exactly what

Defendants allegedly did when they prohibited Plaintiffs from
engaging in political activity at the Discovery Tinley Expo

22

while allowing Zabrocki and his allies to campaign at the event.
This is a facially plausible First Amendment claim.
As Defendants point out, however, “individual liability
under § 1983 requires ‘personal involvement in the alleged
constitutional deprivation.’”

Minix v. Canarecci, 597 F.3d 824,

833 (7th Cir. 2010) (quoting Palmer v. Marion County, 327 F.3d
588, 594 (7th Cir. 2003)).

The only individuals who were

allegedly involved in prohibiting Plaintiffs from participating
in the Discovery Tinley Expo are Zabrocki and the Village Board
of Trustees.

See Am. Compl. at ¶¶ 91-92, 99.

The remaining

Defendants named in Count III--i.e., Ronald Bruning, Judy
Bruning, Michael Clark, Donna Framke, Cathy Maloney, and Martin
Ward--are dismissed for failure to allege that they were
personally involved in any viewpoint discrimination.
D.
Defendants make two arguments for dismissal of Count VI,
which alleges tortious interference with a business expectancy:
(1) TinleySparks cannot have a business expectancy because it is
a non-profit corporation and (2) Eberhardt cannot claim a loss
of a business expectancy on behalf of his law firm, which is not
a party to this suit.

Defendants have not cited any authorities

in support of the first argument, so I need not address it.

See

Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012)
(arguments that are “underdeveloped, conclusory, or unsupported
23

by law” are waived).

As for the second argument, I have already

rejected it.
IV.
Defendants’ final argument is that certain local officials
named in the complaint are entitled to qualified immunity.
“A government official sued under § 1983 is entitled to
qualified immunity unless the official violated a statutory or
constitutional right that was clearly established at the time of
the challenged conduct.”
(2014) (per curiam).

Carroll v. Carman, 135 S. Ct. 348, 350

“A right is clearly established only if

its contours are sufficiently clear that ‘a reasonable official
would understand that what he is doing violates that right.’”
Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
A.
Starting with Count III, Defendants argue that Zabrocki and
other Team Tinley candidates “had no reason to believe that it
was impermissible for them to pose for a picture at the
Discovery Tinley Expo...and then post that photograph on a
Facebook page.

Nor was it unreasonable for them to believe that

they could meet and greet their constituents at the Expo.”

Dkt.

No. 93 at 26-27.
Defendants’ argument misconstrues Count III.

Plaintiffs

are not complaining about a mere photograph or the act of
shaking hands with constituents.
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The essence of their First

Amendment claim is that Zabrocki and the Village Trustees issued
a policy that purported to prohibit political activities at the
Expo; denied Plaintiffs’ application for booth space pursuant to
this policy; and then set up a booth near the Expo’s main
entrance from which they campaigned and engaged in other
political activities.

See Am. Compl. at ¶¶ 89-97.

The relevant

question for qualified immunity purposes is whether the actions
described above “violated a statutory or constitutional right
that was clearly established at the time of the challenged
conduct.”

Carroll, 135 S. Ct. at 350.

The Tinley Park Convention Center, where the Discover
Tinley Expo was held in March 2013, is a “forum” under First
Amendment doctrine--i.e., “a piece of public property usable for
expressive activity by members of the public.”

Ill. Dunesland

Preservation Society v. Ill. Dep’t of Natural Resources, 584
F.3d 719, 722-23 (7th Cir. 2009).

The stated purpose of the

Discover Tinley Expo was “to provide an opportunity for
businesses and organizations to showcase the services available
to our community” and meet “with members of our community to
advertise your product or service.”

Am. Compl. at ¶ 89.

This

purpose shows that the Convention Center, as used for the
Discovery Tinley Expo, was a limited public forum--i.e., “a
public facility limited to the discussion of certain subjects or

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reserved for some types or classes of speaker.”

Ill. Dunesland,

584 F.3d at 723.
It is clearly established that the Village could restrict
access to the Discovery Tinley Expo to “reserve the forum for
its intended purposes, communicative or otherwise, as long as
the regulation on speech [was] reasonable and not an effort to
suppress expression merely because public officials oppose[d]
the speaker's view.”

Perry Educ. Ass’n, 460 U.S. at 46.

In

other words, the Village “[could] forbid all political rallies
[at the Expo], but it [could] not forbid one party's rallies
while allowing another's.”

Sefick v. Gardner, 164 F.3d 370,

372-73 (7th Cir. 1998) (citing inter alia Chicago Acorn v.
Metro. Pier & Exposition Auth., 150 F.3d 695, 704 (7th Cir.
1998) (“government may not discriminate on political grounds in
the terms of access to the nonpublic forums that it owns”)).
Count III alleges that the Village, Zabrocki, and the
Village Trustees violated Plaintiffs’ clearly established right
not to be excluded from a limited public forum based on their
political views.

It follows that Zabrocki and the Village

Trustees are not entitled to qualified immunity.
B.
Defendants’ argument that Marge Weiner is entitled to
qualified immunity fails for similar reasons.

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Plaintiffs did not have an absolute constitutional right to
campaign at the Tinley Park Senior Center.

See Protect Marriage

Ill. v. Orr, 463 F.3d 604, 606 (7th Cir. 2006) (“The fact that a
public facility could be used for political speech doesn't
require that it be made available for such use.”).

It is

clearly established, however, that Ms. Weiner could not allow
Zabrocki to campaign at Senior Center events while prohibiting
Plaintiffs from doing so.

See Chicago Acorn, 150 F.3d at 699

(“Clearly, [the state] is not permitted to pick and choose among
the users of its facilities on political grounds.”).
Count II plainly alleges that Ms. Weiner engaged in
viewpoint discrimination with respect to which candidates could
campaign at Senior Center events.

See Am. Compl. at ¶¶ 69, 72.

Based on these allegations, she is not entitled to qualified
immunity.
C.
Defendants’ final argument is that the individual
Defendants named in Counts IV and V “had reason to believe, in
good faith, that they were to create an atmosphere that promoted
small business growth and that the Downtown Tinley website and
Facebook page were not public forums which allowed political
speech and campaigning.”

Dkt. No. 93 at 28-29.

In contrast to the Discovery Tinley Expo and the Tinley
Park Senior Center, where Defendants allegedly favored one
27

political message over another, Counts IV and V contain no
allegations that Zabrocki and other Team Tinley candidates were
allowed to post political messages on the Downtown Tinley
website or Facebook page while Plaintiff could not.

In other

words, Plaintiffs are not complaining about viewpoint
discrimination in a limited public forum in Counts IV and V.
They are really complaining about Defendants’ decision not to
permit any political messages in these online forums.
Plaintiffs have not cited any case holding that they have a
right to post messages that could be perceived as political in
online forums intended to promote small business growth.
Indeed, the cases support the opposition conclusion: that
Defendants could, consistent with the First Amendment, prohibit
political messages on the Downtown Tinley website and Facebook
page to preserve their intended purpose as small business forums
so long as they refrained from engaging in viewpoint
discrimination.

Perry Educ. Ass’n, 460 U.S. at 46.

In the absence of allegations that Plaintiffs were the
victims of viewpoint discrimination on the Downtown Tinley
website or Facebook page, the individual Defendants named in
Counts IV and V are entitled to qualified immunity from damages,
but not injunctive relief.

See Denius v. Dunlap, 209 F.3d 944,

959 (7th Cir. 2000) (“The doctrine of qualified immunity does
not apply to claims for equitable relief.”).
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V.
Defendants’ motion to dismiss is granted only in part for
the reasons stated above.

ENTER ORDER:

_____________________________
Elaine E. Bucklo
United States District Judge

Dated: May 11, 2015

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