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5126 Lawyerdude ’s analysis of. . .
U.S. 7th Circuit Court of Appeals
Grace Olech v Village of Willowbrook, et. al.
(1998 7th circuit)
160 F.3d 386 (7th Cir.1998) .
Lawyerdude 805 815 3599 Lawyerdude@adelphie.net Lawyerdude1989@yahoo.com Lawyerdude’s links
This is progress in the law! For the 2nd time (the first being Esmail v. Macrane, 53 F.3d 176 (7th Cir. 1995) that this court has held that being “out to get you” is actionable against a government.
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This page is mentioned on Lawyerdude’s top 10 Supreme court cases at: http://www.lawyerdude.8m.com/5095.html
Here is the link to Findaw's version of this Olech case where all the links work: http://laws.findlaw.com/7th/982235.html
I should link to Esmail v. Macrane, 53 F.3d 176 (7th Cir. 1995 but I don’t.
U.S. 7th Circuit Court of Appeals
Grace Olech v Village of Willowbrook, et. al.
(1998 7th circuit)
160 F.3d 386 (7th Cir.1998) .
The U.S. Supreme court upheld the opinion of the 7th circuit: 120 S.Ct. 1073 (2000)
This Olech opinion cites the following cases (in alphabetical order) as precedent:
Batra v. Board of Regents, 79 F.3d 717, 721-22 (8th Cir. 1996)
Ciechon v. City of Chicago, 686 F.2d 511, 522-24 (7th Cir. 1982)
Connecticut v. Doehr, 501 U.S. 1, 15 (1991)
Esmail v. Macrane, 53 F.3d 176 (7th Cir. 1995) Precedent
Falls v. Town of Dyer, 875 F.2d 146, 148-49 (7th Cir. 1989)
First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 318-19 (1987)
Hameetman v. City of Chicago, 776 F.2d 636, 641 (7th Cir. 1985)
In re Special March 1981 Grand Jury, 753 F.2d 575, 580 (7th Cir. 1985)
Indiana State Teachers Ass'n v. Board of School Commissioners, 101 F.3d 1179, 1181-82 (7th Cir. 1996)
LeClair v. Saunders, 627 F.2d 606, 609-10 (2d Cir. 1980)
Milam v. State Farm Mutual Automobile Ins. Co., 972 F.2d 166, 169 (7th Cir. 1992)
Movitz v. First National Bank, 148 F.3d 760, 762 (7th Cir. 1998)
Oyler v. Boles, 368 U.S. 448, 456 (1962)
United States v. Feliciano, 45 F.3d 1070, 1075 (7th Cir. 1995)
Yerardi's Moody Street Restaurant & Lounge, Inc. v. Board of Selectmen, 932 F.2d 89, 94 (1st Cir. 1991)
Zimmer v. Village of Willowbrook, 610 N.E.2d 709, 712 (Ill. App. 1993)
The following rules are cited:
Rule 12(b)(6)
Olech, Plaintiff-Appellant v Village of Willowbrook, et al., Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 4935--George M. Marovich, Judge.
Argued October 8, 1998--Decided November 12, 1998
Before Posner, Chief Judge, and Cummings and Eschbach, Circuit Judges.
Posner, Chief Judge. In Esmail v. Macrane, 53 F.3d 176 (7th Cir. 1995), we held that the equal protection clause provides a remedy when "a powerful public official picked on a person out of sheer vindictiveness." Id. at 178. Although the clause is more commonly invoked on behalf of a person who either belongs to a vulnerable minority or is harmed by an irrational difference in treatment, it can also be invoked, we held, by a person who can prove that "action taken by the state, whether in the form of prosecution or otherwise, was a spiteful effort to 'get' him for reasons wholly unrelated to any legitimate state objective." Id. at 180. See also Indiana State Teachers Ass'n v. Board of School Commissioners, 101 F.3d 1179, 1181-82 (7th Cir. 1996); Ciechon v. City of Chicago, 686 F.2d 511, 522-24 (7th Cir. 1982); Batra v. Board of Regents, 79 F.3d 717, 721-22 (8th Cir. 1996); Yerardi's Moody Street Restaurant & Lounge, Inc. v. Board of Selectmen, 932 F.2d 89, 94 (1st Cir. 1991); LeClair v. Saunders, 627 F.2d 606, 609-10 (2d Cir. 1980). Grace Olech brought suit against the Village of Willowbrook and two of its high officials in reliance on Esmail's principle and was tossed out on the defendants' Rule 12(b)(6) motion on the ground that the facts pleaded in her complaint did not fit the mold of Esmail.
Olech and her husband, now deceased, used to get their water from a well on their property. But the well broke down and they asked the Village of Willowbrook, where their property is located, to connect their home to the municipal water system. The Village agreed, but besides requiring the Olechs to pay the cost of the hook up (which apparently is a standard requirement and one with which they complied without complaining) told them they would have to grant the Village not the customary 15-foot easement to enable servicing of the water main but a 33-foot easement to permit the Village to widen the road on which they live. The Olechs refused, and after three months the Village relented, acceded to the smaller easement, and hooked up the water. But meanwhile the Olechs had been without water and as a consequence suffered various types of damage for which they seek redress in this suit.
So far in our recitation of the allegations of the complaint there is nothing to suggest a denial of equal protection. But the complaint goes on to allege that the defendants' motivation for insisting on the nonstandard easement was the fact that the Olechs earlier had sued the Village, and obtained damages, for flood damage caused by the Village's negligent installation and enlargement of culverts located near the Olechs' property. See Zimmer v. Village of Willowbrook, 610 N.E.2d 709, 712 (Ill. App. 1993). The complaint alleges that the lawsuit generated "substantial ill will" that caused the Village to depart from its normal policy of demanding only a 15-foot easement in exchange for providing municipal water and instead to decide to pave over a chunk of the Olechs' property. A letter is cited in which the Village's lawyer conceded, after the Village had backed down and agreed to require only the 15-foot easement, that that easement "will be sufficient to install the water main. This is consistent with Village policy regarding all other property in the Village." For three months the Olechs had been treated differently, to their detriment, from all other property owners in the Village only because their meritorious suit against the Village had angered Village officials. These are just allegations and may be false. But as the defendants acknowledge, we must assume they are true for purposes of this appeal. The defendants have yet to file an answer or any other pleading that denies any allegation of the complaint.
Nevertheless the district judge granted the defendants' motion to dismiss because the complaint didn't allege an "orchestrated campaign of official harassment" motivated by "sheer malice," quoting our opinion in Esmail. 53 F.3d at 179. Nothing in the Esmail opinion, however, suggests a general requirement of "orchestration" in vindictive-action equal protection cases, let alone a legally significant distinction between "sheer malice" and "substantial ill will," if, as alleged here, the ill will is the sole cause for the action of which the plaintiff complains. Esmail was complaining that he had been denied liquor licenses on the basis of trivial infractions for which no other applicant had ever been denied a license. Standing by itself, this difference in treatment would not have been a denial of equal protection, but merely an example of uneven law enforcement, than which nothing is more common nor, in the usual case, constitutionally innocent. E.g., Oyler v. Boles, 368 U.S. 448, 456 (1962); Esmail v. Macrane, supra, 53 F.3d at 179; Falls v. Town of Dyer, 875 F.2d 146, 148-49 (7th Cir. 1989); Hameetman v. City of Chicago, 776 F.2d 636, 641 (7th Cir. 1985). The plaintiff had to and did allege that the denial of his applications was the result not of prosecutorial discretion honestly (even if ineptly--even if arbitrarily) exercised but of an illegitimate desire to "get" him because of lawful actions by him that had aroused the mayor's ire. It was in that context that we pointed out that the complaint alleged much more than uneven enforcement.
The present case is not one of uneven enforcement. The Village does not deny that it has a legal obligation to provide water to all its residents. If it refuses to perform this obligation for one of the residents, for no reason other than a baseless hatred, then it denies that resident the equal protection of the laws. And that is sufficiently alleged. While it may have been important in Esmail that the plaintiff alleged an "orchestrated campaign," it was not important here. The district judge did not try to hook up the requirement of an "orchestrated campaign" to the language or policy of the equal protection clause, and we cannot think of any hook either. Nor is important that the oppression of the plaintiff was merely temporary. Many temporary deprivations are actionable even under provisions of the Constitution that, unlike the equal protection clause, require that the deprivation be of liberty or property. E.g., Connecticut v. Doehr, 501 U.S. 1, 15 (1991); First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 318-19 (1987); In re Special March 1981 Grand Jury, 753 F.2d 575, 580 (7th Cir. 1985). And to be deprived of water for three months is a potentially more serious deprivation than many permanent deprivations that we can think of.
Of course we are troubled, as was the district judge, by the prospect of turning every squabble over municipal services, of which there must be tens or even hundreds of thousands every year, into a federal constitutional case. But bear in mind that the "vindictive action" class of equal protection cases requires proof that the cause of the differential treatment of which the plaintiff complains was a totally illegitimate animus toward the plaintiff by the defendant. If the defendant would have taken the complained-of action anyway, even if it didn't have the animus, the animus would not condemn the action; a tincture of ill will does not invalidate governmental action. Maybe the present case can be disposed of on this or some other ground well short of trial; it cannot be disposed of on the pleadings.
And especially not on the defendants' alternative ground, that their action was not the cause of the plaintiff's lacking water for three months. They point out that had her well not broken down, which is not contended to be their fault, she would have had an uninterrupted supply of water no matter what the Village failed to do. This is a ridiculous argument. It is like saying that if she didn't live in the Village of Willowbrook she wouldn't (in all likelihood) have had a water problem. That is blaming the victim with a vengeance. Every injury has a multitude of antecedent conditions. When one of them is the defendant's culpable fault, he is not excused from liability on the ground that if some other, innocent condition hadn't been present (such as Columbus's discovery of America) no injury would have occurred. E.g., Movitz v. First National Bank, 148 F.3d 760, 762 (7th Cir. 1998); United States v. Feliciano, 45 F.3d 1070, 1075 (7th Cir. 1995); Milam v. State Farm Mutual Automobile Ins. Co., 972 F.2d 166, 169 (7th Cir. 1992).
Reversed.
Here is a newspaper story about the case:
Quiet on Tennessee Avenue
By Linda Chung, Medill News Service
It's quiet on a Sunday December afternoon in Willowbrook, a village southwest of Chicago.
A mailbox points to a narrow road that meanders on Tennessee Avenue.
A dim light illuminates a one-story home surrounded by leafless trees that shoot high into the dark clouds.
And a rush of snowflakes rips by, as a soft wind whispers through the branches.
Just as quiet as the street on which Grace Olech lives is the suit she filed against the village of Willowbrook, which unexpectedly found its way to the U.S. Supreme Court.
"I didn't even know about it," said Paul Kriks, who has lived across from Olech on Tennessee Avenue for 20 years.
In fact, he said, "I don't even know her. I know of her, but we don't talk to her."
The Kriks said their only connection with Olech was when they and their neighbors were experiencing flooding problems on their properties a decade ago.
Properties on their street flooded about twice a year, Kriks said. The water even formed a pond in one of the neighbor's backyards.
More than 20 northwest Willowbrook residents formed a group called "Stop the Waters" and three families filed suit for damages to their properties, claiming the village's poor storm-water management planning and enlargement of culverts on their properties caused the damage.
They alleged that their yards were being flooded because the village did not provide adequate drainage and did not require developers to provide proper detention areas on their properties.
"To control the storm water in the vicinity," according to John Wimmer, one of Olech's attorneys, the village was going to build ditches near the families' properties. "In other words, they were going to give her more water, not drinking water, storm water."
Phyllis Zimmer, Olech's daughter, was the first to get a lawyer, recalled neighbor Kriks. "We contributed about $1,000, but then we bailed out because they wanted more money and we didn't hear from the village or the committee."
And that was their last involvement with Olech and the group. Four years later, the suit went to trial in DuPage County. The judge granted the village's request to dismiss the case because recovery on damages was limited to a one-year period prior to the filing of the complaint, and did not include recovery on damages four years earlier.
The families appealed and the Illinois appellate court reversed after finding that Willowbrook's actions did not "constitute an improvement to real property."
The families received a $155,000 settlement from the village, according to attorney Wimmer, who would represent Olech later.
The Paugas, who live a few houses north of Olech, heard about the case, but were never involved with the lawsuit. And like the Kriks, they too did not know about the second suit Olech filed, the one all the controversy seems to be over.
Olech, now 72, claims that four years ago, the village of Willowbrook violated her constitutional rights under the Equal Protection Clause. When her well broke, she asked the village to connect her home to the municipal water system and the village agreed--on the condition that she grant the village a 33-foot easement.
Olech refused because she said the village only required a 15-foot easement from other village residents.
Kriks said that there are easement variances, depending on the location of the main water system and the layout of one's house.
"We gave up about 30 to 35 feet of easement, and we understood this when we first moved in," Kriks claimed. "And that's not secret information. It depends on how far your house is from the street, and (Olech's) house if about 150 feet from the street."
Although the village finally relented, it took another four months before constrution began to hook up city water to her house. She had gone without water for the winter of 1995.
In her suit, she alleges that Willowbrook picked on her out of sheer vindictiveness because she and her neighbors had filed state-court lawsuits against the village in August of 1989.
The lawsuits, Olech said, caused "ill will" on the part of the village, and the easement was retaliation against the families.
The village was "being vindictive and treated her different intentionally for no legitimate government reason," Wimmer said. "They don't like her, because she (had) sued them for flooding her property."
The village contends that the added easement was to be used to install a paved roadway and public utilities and that the requirement had not nothing to do with any prior lawsuits filed by her. The village also says that the delay in construction was related to weather.
Kriks said he does not believe that the village is "out to be vindictive of any single person. They look at the facts and determine what's best" for the community, he said.
Kriks said he finds Olech's claim that the village singled her out "strange."
"If your well breaks," Kriks said, "fix it."
"I can't tell you that (the village of Willowbrook) did it," said Jean Pauga, another of Olech's neighbors. "But I'll tell you I wouldn't be surprised (that the village singled her out out of sheer vindictiveness)."
By 1999, Pauga had been fighting the village for more than a year to stop "extreme" high-density housing development on and around her street.
"We just want the houses to be the same" as the ones in our neighborhood, Bob Pauga said.
The Paugas sent letters to the village, attended board meetings and formed meetings with neighbors to petition the village. "And you get absolutely nowhere with them," she said. "They don't listen to anybody." The Paugas are seeing a trend in the villages and cities around them that they said they don't like.
"They want to enlarge the community, make it more important" by developing high-density buildings, the family said. "They want to expand Willowbrook in the direction of a bureaucratic system."
But the Paugas, and many of their neighbors, do not want their community to go in that direction, she said.
And the struggle to stop the development is an "it's the good ole 'you can't fight city hall,'" according to Jean Pauga.
Kriks believes the village has good intentions. "I don't see anything wrong with (improving the road). The street is dangerous," he claimed. "Every now and then, a car ends up in a ditch. You have one lane and two cars going on both directions."
The safer you want the street to be, the more property you will have to give up, he believes.
But Wimmer said, "We all want things, but the constitution requires that if the government wants to take private property for public use, they have to pay for it. But the village never attempted to pay a dime for it."
A car pulls aside onto someone's property, as another drives around it.
The cold air creeps in and winds through a barely-lit street.
The wind hushes, and it's quiet on Tennessee Avenue.
So quiet is Olech's suit against the village of Willowbrook this time around that the neighbors barely know about it.
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