Edith MILESTONE, Plaintiff-Appellant, v. CITY OF MONROE, WISCONSIN, Defendant-Appellee.
No. 10-1300.
United States Court of Appeals, Seventh Circuit.
Decided Nov. 21, 2011.
Argued Sept. 15, 2010.
Restraint is particularly appropriate in light of the Supreme Court‘s directive that removal statutes should be “strictly construed,” Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28, 32, 123 S.Ct. 366, 154 L.Ed.2d 368 (2002), and the sovereignty concerns that arise when a case brought by a state in its own courts is removed to federal court. As the Supreme Court has noted, “considerations of comity make us reluctant to snatch cases which a State has brought from the courts of that State, unless some clear rule demands it.” Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 21 n. 22, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). See also CVS Pharmacy, 646 F.3d at 178 (“While it is true that West Virginia voluntarily entered into its own courts to enforce its laws, it did not voluntarily consent to removal of its case to a federal court, and a federal court should be most reluctant to compel such removal, reserving its constitutional supremacy only for when removal serves an overriding federal interest.“).
The district court correctly determined that this case is not a class action or mass action under CAFA. We therefore lack jurisdiction over an appeal from the district court‘s remand order. The petition for leave to appeal is DENIED.
Kevin P. Reak, Gregg J. Gunta (argued), Attorneys, Gunta & Reak, S.C., Milwaukee, WI, for Defendant-Appellee.
SYKES, Circuit Judge.
Edith Milestone was banned from entering the Senior Center in the City of Monroe, Wisconsin, because she repeatedly violated the Center‘s Code of Conduct. She sued the City under
We affirm, although on a somewhat expanded analysis. We agree that the Senior Center director and the Senior Citizens Board were not the City‘s final policymakers for purposes of enforcing the Code of Conduct. Under state and local law, Milestone had the right to ask the Monroe Common Council to overturn the expulsion order, and her failure to do so precludes municipal liability under Monell to the extent that the claimed constitutional violations stem from the imposition of the ban. This result does not impose a requirement of exhaustion of administrative remedies under
Milestone‘s facial challenge to the Code rests on a different foundation, however. By Monroe ordinance, the Senior Citizens Board has the authority to make rules for the Senior Center; the Code itself is therefore city policy. But Milestone‘s facial challenge is flawed on the merits. The Code consists of reasonable “time, place, or manner” restrictions, and is neither unconstitutionally vague nor overbroad.
I. Background
Edith Milestone, a senior citizen, lives in Monroe, Wisconsin, a small city that claims the title of the “Swiss Cheese Capital of the U.S.A.” Prior to 2008 Milestone often visited the Behring Senior Center, operated by the City of Monroe. The Senior Center is open to the 55-and-over community from Monroe (a/k/a the “cheese city“) and the surrounding area. Among other activities, the Senior Center offers classes, meals, exercise programs, and card games.
The Monroe Senior Citizens Board, comprised of nine citizen volunteers, is empowered to adopt rules and regulations to “secure the suitable use and enjoyment” of the “cheese city social center building ... by senior citizens of Monroe.”
Milestone‘s visits to the Center were fraught with turmoil. Her file included a number of “incident reports” alleging the following disturbances: She engaged in a shouting match at a card game (February 2002); she tried to get the Center‘s director fired (December 2005); she filed frivolous police complaints about other pa-
In October 2008 Milestone was involved in an incident that led to her expulsion from the Center.1 While playing cards, Milestone began loudly complaining about the scoring of the game. When the game was finished, Milestone angrily refused to accept the one-dollar prize she had won because she thought that the game had been scored incorrectly. Tammy Derrickson, the Senior Center director, approached Milestone and told her that her behavior was not acceptable. The two got into a heated discussion, which escalated when Milestone wagged her finger in Derrickson‘s face and threatened to sue her. Derrickson reiterated that Milestone‘s behavior was unacceptable and told her that she was no longer allowed to visit the Center.
The next day, Derrickson sent Milestone a letter informing her that she was “no longer welcome to attend Senior Center Programs” based on the following violations of the Center‘s Code of Conduct: “(1) [n]ot treating other participants with respect[;] (2) [a]busive language[;] (3) [n]ot treating Senior Center staff in a respectful man[ner; and] (4) [p]hysically threatening conduct.” Before sending the letter, Derrickson reviewed it with the mayor, the city attorney, and the chief of police, but not with any members of the City‘s Common Council.
Milestone‘s attorney wrote to the Senior Citizens Board and requested a copy of the Code and any documentation regarding the incident that precipitated her expulsion. An assistant city attorney provided the documents and also informed Milestone‘s attorney that Milestone could appeal Derrickson‘s decision to the Senior Citizens Board via a “due process hearing.” Milestone exercised this right.
The Senior Citizens Board convened a hearing and heard testimony under oath from Milestone, Derrickson, and other witnesses. In a written decision, the Board affirmed Derrickson‘s action but modified the ban to remove its apparent perpetual duration. The Board said it would “consider a petition for reinstatement by Edith Milestone upon proof of successful completion of an accredited ‘Anger Management’ program.” The Board also advised Milestone of her right to take an administrative appeal to the City‘s Common Council within 30 days and that if she failed to do so, the Board‘s decision would “be treated as a final determination” for purposes of judicial review. See
Milestone did not appeal the Board‘s decision to the Common Council or seek judicial review. Nor did she enroll in an anger-management program. Instead, she filed this
II. Discussion
This case comes to us from an order granting summary judgment for the City, so our review is de novo; we construe all facts and reasonable inferences in favor of Milestone, the nonmoving party. Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir.2010). Milestone argued below and reiterates here that Derrickson‘s decision to expel her from the Senior Center amounts to viewpoint discrimination in violation of her right to free speech. She also claims the Code of Conduct is unconstitutionally overbroad in that it sweeps in too much protected speech, subjecting it to the threat of punishment. Finally, she alleges several due-process violations. She claims that: (1) the ban was imposed without a hearing, violating her right to due process; (2) the Code deprived her of fair notice because it does not prescribe specific penalties; and (3) the decision to expel her from the Senior Center violated her right to move about in public places.
The magistrate judge did not reach the merits of these claims but instead entered judgment for the City after finding no basis for municipal liability. To the extent that Milestone‘s claims relate to the expulsion order, we agree. Milestone sued the City, not Derrickson, who imposed the ban, or the members of the Senior Center Board, who affirmed it. There is no respondeat superior liability under
Only the third theory of Monell municipal liability is at issue here. Milestone argues that Derrickson, or alternatively, the Senior Citizens Board, were final policymakers for the City. Whether an entity has final policymaking authority is a question of state or local law. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989); Kujawski v. Bd. of Comm‘rs of Bartholomew Cnty., Ind., 183 F.3d 734, 737 (7th Cir.1999). Not every municipal official with discretion is a final policymaker; authority to make final policy in a given area requires more than mere discretion to act. See Darchak, 580 F.3d at 630; Gernetzke v. Kenosha Unified Sch. Dist. No. 1, 274 F.3d 464, 469 (7th Cir.2001). Whether a public official has final policymaking authority often turns on whether his decisions are subject to review by a higher official or other authority. See Gernetzke, 274 F.3d at 469 (“[T]he cases limit municipal liability under section 1983 to situa-
Here, Derrickson imposed the initial punishment of expulsion, and the Board affirmed her decision with a modification as to its duration. For the City to be liable for these actions, Milestone must first establish that Derrickson or the Board had final policymaking authority with respect to imposing punishments for violating the rules of the Center. It‘s clear that Derrickson was not a final policymaker. The City never delegated final policymaking authority to the director of the Center; the City Code does not even refer to the position. All of Derrickson‘s decisions are subject to review by the Senior Citizens Board. She lacked independent authority to impose discipline, let alone the authority to set general policy on this issue. See Darchak, 580 F.3d at 630. Accordingly, Derrickson‘s actions did not subject the City to liability under
Whether the Board is the final policymaker is a somewhat closer question, but we agree with the magistrate judge that under state and local law, and based on the structure of the Board itself, the Board did not have final policymaking authority. Chapter 68 of the Wisconsin Statutes prescribes a general procedure for review of initial administrative determinations like Derrickson‘s decision to ban Milestone from the Center. See
Importantly, however, Milestone had a statutory right to appeal the Board‘s decision to the Common Council. Because she “did not have a hearing substantially in compliance with
Apart from state municipal law, the Monroe City Code confirms that the Board is not the final authority for purposes of reviewing the director‘s decisions. By ordinance the Board has the following powers:
(A) To govern, manage, control, improve and care for the cheese city social center building and grounds and secure the suitable use and enjoyment thereof by senior citizens of Monroe.
(B) To oversee professional employees having responsibility for senior citizen programs and activities subject to policies and procedures adopted by the city for supervision of such employees.
(C) To adopt rules and regulations to promote the purposes for which the board has been created.
(D) To acquire in the name of the city for senior citizen purposes by gift, devise, bequest or condemnation, either absolutely or in trust, money, real or personal property, or any right or privilege. Gifts to the city of money or other property, real or personal, either absolutely or in trust for senior citizen purposes shall be accepted only after they shall have been recommended by the board to the council and approved by the council by resolution. Subject to the approval of the council, the board may execute every trust imposed upon the use of property or property rights by deed, testament or other conveyance transferring the title of such property to the city for senior citizen purposes.
(E) Subject to the approval of the council, to buy or lease land in the name of the city for senior citizen facilities within the city, and buildings for senior citizen activities, and, with the approval of the council to sell or exchange property no longer required for its purposes.
(F) To acquire and maintain such equipment as may be necessary to properly carry out its purposes.
(G) To promote senior citizen activities within the city as it may deem advisable and its budget may permit. (5-15-1990)
As the provisions we have highlighted attest, the Board has discretion to act in some discrete areas and in others is subject to oversight and control by the City, usually through the Common Council. At issue here is subsection (B) of the ordinance, which gives the Board the authority to oversee the actions of the Center‘s employees—subject, however, to policies set by the City. The Common Council‘s explicit retention of ultimate policymaking authority is key; it confirms that when the Board reviewed Derrickson‘s decision, it was not acting with final policymaking authority. See Pembaur, 475 U.S. at 483.
Finally, the Board‘s structure suggests that it does not make final policy for the City. Although a creature of municipal law, the Board is not a subcommittee of the Common Council. Of its nine members, only one is also a member of the Council.
To the extent that Milestone‘s claims are premised on the Code itself, however, a different analysis applies. The Monroe Common Council empowered the Board to make rules for the Senior Center. See
The Code contains a mission statement, several objectives, and nine provisions comprising the actual “Code of Conduct.” (We have attached a complete copy of the Code in the appendix to this opinion.) The Code is generally aimed at conduct not speech, but three of its provisions arguably touch upon speech or expression: the requirement that patrons treat everyone with respect and courtesy; the prohibition against abusive, vulgar, or demeaning language; and the requirement that patrons treat Center personnel with respect. In Milestone‘s view these provisions are viewpoint-based regulations in that they subject any person who disagrees with the director‘s decisions to permanent ejection from the Center.
We disagree. “Government regulation of expressive activity is content neutral so long as it is ‘justified without reference to the content of the regulated speech.‘” Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984)). That is, “[a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.” Id. The Code‘s mission statement and objectives make it clear that the purpose of the Code is completely unrelated to the content of any speaker‘s message. Rather than focusing on what the Center‘s patrons say, the Code focuses on the manner in which they say it. Nothing in the Code provides a basis for punishing patrons for disagreeing with other visitors or the Center staff.
Even in a traditional public forum where restrictions on speech are viewed with greatest suspicion, content-neutral
First, the Code‘s stated purpose is to establish a “‘home away from home‘” for visitors to the Senior Center, an environment that is “positive,” “dynamic,” and “pleasant and upbeat.” Considering the specific clientele the Senior Center serves, we think this qualifies as a significant governmental interest. By analogy, in Stokes v. City of Madison, 930 F.2d 1163, 1170-71 (7th Cir.1991), we upheld an amplified sound restriction on a mall adjacent to a library, recognizing that the City‘s interest in maintaining a quiet library environment and protecting library users from unwanted noise justified the restriction. Similarly here, the City‘s interest in protecting the patrons of the Senior Center from vulgar, abusive language and disrespectful or demeaning treatment by other patrons justifies these provisions.
The Code also satisfies the narrow tailoring requirement. In “time, place, or manner” cases, “narrow tailoring” does not mean that the government must use “the least restrictive or least intrusive means” to achieve its end; rather, in this context “the requirement of narrow tailoring is satisfied ‘so long as the ... regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.‘” Ward, 491 U.S. at 798-99 (quoting United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985)). Rules requiring the Center‘s visitors to treat others with respect and to refrain from vulgar, abusive language easily satisfy this standard. The City‘s interest in maintaining a hospitable place for senior citizens to gather would be seriously undermined absent basic civility requirements.
Finally, the Code leaves open ample channels of communication. Regulations may fail this part of the analysis when they prevent speakers from reaching their target audiences. Weinberg v. City of Chicago, 310 F.3d 1029, 1040 (7th Cir.2002). The Code prevents Senior Center patrons from yelling at others or using abusive language, but it does not prohibit respectful disagreement or inhibit complaints. This is hardly a case in which a speaker‘s “ability to communicate effectively is threatened.” Id. at 1042 (quoting City Council v. Taxpayers for Vincent, 466 U.S. 789, 812, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984)). Accordingly, the Code passes constitutional muster as a content-neutral and reasonable time, place, or manner regulation.
Our conclusion on this point also bears on Milestone‘s claim that the Code is impermissibly overbroad in violation of the First Amendment. See Grayned v. City of Rockford, 408 U.S. 104, 114-21, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) (rejecting overbreadth claim where ordinance was reasonable restriction, narrowly tailored to further significant governmental interests). “[A]n overbroad statute must reach a ‘substantial number of impermissible applications’ before it may be considered facially invalid.” United States v. Fletcher, 634 F.3d 395, 402 (7th Cir.2011) (quoting New York v. Ferber, 458 U.S. 747, 771, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982)). As we have explained, the Code regulates public disturbances and is narrowly tailored to further the City‘s significant interest in ensuring that the Center remains a welcoming and peaceful place for senior citizens to gather.
Finally, Milestone makes a due-process void-for-vagueness claim. A law is unconstitutionally vague if it fails to sufficiently define the conduct it prohibits; the point of vagueness doctrine is to permit individuals to conform their conduct to the law‘s requirements and to guard against arbitrary or discriminatory enforcement. Grayned, 408 U.S. at 108-09; United States v. Dimitrov, 546 F.3d 409, 414 (7th Cir.2008). The Code of Conduct is a poor fit with this doctrine because it is just a set of rules of decorum for the Senior Center; it is neither a statute nor an ordinance, and violations do not result in arrest, incarceration, or even a fine. Where the penalties for noncompliance are less severe, a high level of clarity generally is not required. See Gresham v. Peterson, 225 F.3d 899, 908 (7th Cir.2000). Indeed, Milestone points to no case in which a similar local rule was invalidated on vagueness grounds.
To the extent that any analogy can be drawn, the Code is akin to statutes prohibiting disruptive noises, see, e.g., Grayned, 408 U.S. at 107-14, disorderly conduct, see, e.g., Ovadal, 416 F.3d at 535-36, disturbing the peace, see, e.g., United States v. Woodard, 376 F.2d 136, 140-42 (7th Cir.1967), or abusive personal behavior against others, such as “aggressive panhandling,” see Gresham, 225 F.3d at 908-09 (citing cases). All of these laws withstood vagueness challenges. In Grayned, for example, the Supreme Court looked to the ordinance itself and its preamble to conclude that it prohibited, in clear enough terms, “deliberately noisy or diversionary activity that disrupts or is about to disrupt normal school activities.”4 408 U.S. at 110-11. Similarly here, the Code prohibits disruptive behavior that interferes with other patrons’ ability to use the Senior Center for its intended purpose. A person of reasonable intelligence would understand this meaning. Gresham, 225 F.3d at 908 (“Laws must contain a ‘reasonable degree of clarity’ so that people of ‘common intelligence’ can understand their meaning.” (quoting Roberts v. United States Jaycees, 468 U.S. 609, 629, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984))). To the extent the Code is subject to vagueness analysis at all, it is not unconstitutionally vague.
AFFIRMED.
Appendix—Senior Center Code of Conduct
MISSION STATEMENT
The Behring Senior Center of Monroe is a “home away from home“, not negative and defeated, but positive and dynamic, looking for the brighter things in life. It is a place where Senior Citizens have the opportunity to meet on a local level. The Center will offer to Monroe, the surrounding area and out-of-town guests, recreation, education, information, social services and health services and encourage service to fellow citizens and
OBJECTIVE
- To foster pride and respect in the Behring Senior Center of Monroe facility, along with all equipment and furnishings there in.
- To keep the Behring Senior Center environment pleasant and upbeat at all times.
- To create a “home away from home” atmosphere for all who come to the Center.
- To provide services, assistance and support to anyone 55 years of age or older.
- To promote exemplary personal habits and cleanliness.
- To create Senior credibility and integrity in the community.
CODE OF CONDUCT
- When in the Behring Senior Center of Monroe, all will be treated with respect and courtesy regardless of age, race or gender.
- Use of abusive, vulgar, or demeaning language is prohibited.
- Any physically threatening conduct is prohibited.
- Members of the Behring Senior Center staff, outside instructors and Green County personnel will be treated in a respectful manner.
- Thievery in any form will not be tolerated.
- The possession or use of alcohol, illicit drugs or weapons of any kind is strictly prohibited.
- The Behring Senior Center is a non-smoking environment.
- Attention to personal hygiene is expected and appreciated by all who use the center.
- Violations of this code of conduct will be acted upon by the Senior Center staff or Board of Directors.
DIANE P. SYKES
UNITED STATES CIRCUIT JUDGE