David Killinger v. DON JOHNSON , Individually

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1492
D AVID K ILLINGER ,
Plaintiff-Appellant,
v.
D ON J OHNSON , Individually, and as Mayor
and Liquor Commissioner, and V ILLAGE OF
P ORT B YRON , I LLINOIS ,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 02 C 4044—John A. Gorman, Magistrate Judge.
____________
A RGUED S EPTEMBER 15, 2004—D ECIDED N OVEMBER 24, 2004
____________
Before F LAUM , Chief Judge, and C OFFEY and K ANNE ,
Circuit Judges.
F LAUM , Chief Judge. Plaintiff-appellant David Killinger
owns a bar and restaurant in the Village of Port Byron,
Illinois. Because plaintiff’s establishment allegedly had sold
beer to an underage man, the mayor of Port Byron tempo-
rarily closed the business, suspended Killinger’s license,
and imposed a fine. Killinger subsequently filed this suit in
federal court under 42 U.S.C. § 1983 against the mayor and

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2 No. 04-1492
the village, alleging violations of the Equal Protection and
Due Process Clauses of the Fourteenth Amendment to the
United States Constitution. The district court granted
summary judgment in favor of both defendants. We hold
that the mayor enjoys judicial immunity, and the alleged
injuries were not caused by a Port Byron policy. Accord-
ingly, we affirm.
I. Background
Every August, Port Byron holds a two-day celebration
known as “Tug Fest.” The celebration culminates in a tug-
of-war across the Mississippi River, pitting the residents of
Port Byron against their rivals in Le Claire, Iowa. Tug Fest
attracts a fair number of tourists, swelling the population
of both towns. Port Byron relaxes its liquor laws during the
festival, allowing adults age 21 and over to drink outside.
To prevent underage drinking, local police and liquor
licensees hand out wristbands to adults of legal age who
present valid photo identification.
David Killinger and his wife own an establishment in
Port Byron named G’s Riverfront Café (“G’s”). G’s is a fine
dining restaurant with an adjacent bar, located near the
Tug Fest activities. During the festival, G’s converts its oper-
ations to accommodate the crowds, selling mainly beer, wine,
liquor, and some fast food.
On August 10, 2001, the first night of Tug Fest that year,
Port Byron police officers patrolling the festivities observed a
young-looking man who was not wearing a wristband
drinking beer from a 16-ounce can. After being questioned
by the officers, the man admitted that he was underage,
and that he had purchased the beer from G’s without being
asked for identification. The officers knew from experience
that G’s was the only nearby establishment selling beer in
16-ounce cans.

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No. 04-1492 3
The officers relayed this information to Chief of Police
Steven Rathburn. Chief Rathburn sent several underage peo-
ple to attempt to buy beer from G’s, but these attempted
“stings” were unsuccessful. Chief Rathburn then conferred
with Port Byron Mayor Donald Johnson. As mayor, Johnson
also acts as the local liquor control commissioner, charged
with the administration of Illinois’s Liquor Control Act of
1934 (“the Liquor Act”). See 235 Ill. Comp. Stat. 5/4-2.
Mayor Johnson decided, with the chief’s concurrence, that
he should order G’s closed for the remainder of the evening.
The mayor did not issue a written order explaining the
reasons for this decision.
Around 10:00 P . M ., Chief Rathburn went to G’s and spoke
with Killinger. The chief explained that police had arrested
an underage man who claimed to have purchased a beer at
G’s without being asked for identification. Despite
Killinger’s denial that his business had violated the law,
Chief Rathburn directed plaintiff to close both the bar and
restaurant areas of G’s. The business otherwise would have
remained open until 2:00 A . M . G’s was allowed to re-open
the next day.
On August 30, 2001, Mayor Johnson, acting as the local
liquor control commissioner, held a public hearing on
whether G’s had served an alcoholic beverage to a minor.
Killinger was represented by counsel, but it is unclear
whether he was allowed to cross-examine Port Byron’s wit-
nesses. Mayor Johnson found that G’s had violated the Act,
suspended G’s liquor license for three days, and imposed a
$500 fine. On appeal of that order to the State Liquor
Commission, Killinger was represented by counsel, offered
witnesses, and cross-examined Port Byron’s witnesses. The
State Liquor Commission affirmed the suspension and fine.
Killinger appealed the State Liquor Commission’s decision
to the Rock Island County Circuit Court. The record is un-
clear as to the status of that appeal.

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4 No. 04-1492
1 Plaintiff does not appeal the district court’s ruling regarding his
equal protection claims.
On May 24, 2002, Killinger filed the instant action under
42 U.S.C. § 1983. The complaint alleged that Mayor Johnson
violated plaintiff’s procedural due process rights by failing
to hold a hearing prior to the summary closing on August 10,
2001, and by ignoring procedures required by Illinois law.
Killinger also claimed that the mayor violated his equal
protection rights by singling out G’s for scrutiny. Plaintiff
sought to impose liability on both Johnson and Port Byron
for the mayor’s actions.
The district court (per Magistrate Judge John Gorman,
presiding by consent) granted summary judgment in favor
of the defendants on all counts. It ruled that Mayor Johnson
enjoyed judicial immunity for his acts as the local liquor
control commissioner. The court also held that Killinger’s
injury, if any, was not caused by a policy of Port Byron. It
concluded, finally, that plaintiff had been afforded adequate
process, and failed to establish an equal protection claim as
a matter of law.
II. Analysis
Killinger appeals the district court’s grant of summary
judgment in favor of defendants as to his due process
claims. 1 Summary judgment is appropriate “if the plead-
ings, depositions, answers to interrogatories, and admis-
sions on file, together with the affidavits, if any, show that
there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c). We review the facts in the light most
favorable to the nonmovant, and draw all inferences in
favor of that party. Ziliak v. AstraZeneca LP, 324 F.3d 518,
520 (7th Cir. 2003). A district court’s grant of summary

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No. 04-1492 5
judgment is reviewed de novo. Sullivan v. Ramirez, 360
F.3d 692, 696 (7th Cir. 2004).
A. Claim Against Mayor Johnson
The Liquor Act authorizes Mayor Johnson, as local liquor
control commissioner, to impose fines or revoke or suspend
licenses for violations of the Act. See 235 Ill. Comp. Stat.
5/7-5. Selling alcohol to a person under the age of 21 con-
stitutes a violation of the Act. 5/6-16(a)(i). The Liquor Act
establishes the procedures that must be followed before
these sanctions may be imposed: “[N]o such license shall be
so revoked or suspended and no licensee shall be fined
except after a public hearing by the local liquor control
commissioner with a 3 day written notice to the licensee
affording the licensee an opportunity to appear and defend.”
5/7-5. The Liquor Act also permits the temporary closing of
a business without a prior hearing in certain limited
circumstances:
If the local liquor control commissioner has reason
to believe that any continued operation of a particu-
lar licensed premises will immediately threaten the
welfare of the community he may, upon the issuance
of a written order stating the reason for such
conclusion and without notice or hearing order the
licensed premises closed for not more than 7 days,
giving the licensee an opportunity to be heard dur-
ing that period, except that if such licensee shall
also be engaged in the conduct of another business
or businesses on the licensed premises such order
shall not be applicable to such other business or
businesses.
Id.
Killinger asserts that the mayor violated these procedures
by summarily closing G’s without issuing a written order,

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6 No. 04-1492
explaining his reasons, or holding a hearing while the bar
was ordered closed (between 10:00 P . M . on August 10th and
2:00 A . M . on August 11th). The order summarily closing G’s
was also overbroad, according to plaintiff, because it applied
to both the bar and restaurant areas of G’s. Although the
mayor later held a hearing to address the propriety of
imposing a fine and suspension, Killinger contends that he
was never afforded an opportunity to challenge the sum-
mary closing itself.
Plaintiff argues that, by violating Illinois law, the mayor
also violated his federal due process rights. Killinger also
asserts that the Due Process Clause requires the authorities
to hold a hearing before temporarily closing his business, see,
e.g., Bell v. Burson, 402 U.S. 535, 542 (1971), even though
the Liquor Act does not. We do not reach the merits of
Killinger’s due process claim against Johnson, however,
because we agree with the district court that the mayor is
protected by judicial immunity.
Absolute judicial immunity shields judicial and quasi-
judicial actors from liability for civil damages arising out of
the performance of their judicial functions. Butz v.
Economou, 438 U.S. 478, 512-13 (1978). In determining
whether an official enjoys judicial immunity, we examine
“the nature of the responsibilities of the official in question.”
Tobin for Governor v. Ill. State Bd., 268 F.3d 517, 521 (7th
Cir. 2001). “[I]mmunity is justified and defined by the func-
tions it protects and serves, not by the person to whom it
attaches.” Forrester v. White, 484 U.S. 219, 227 (1988). Fol-
lowing this functional approach, we have held that an Illinois
local liquor control commissioner enjoys absolute immunity
when deciding whether to renew or revoke a liquor license.
Reed v. Village of Shorewood, 704 F.2d 943, 951 (7th Cir.
1983). Our conclusion in Reed was based upon the authority
conferred and the limits imposed upon a commissioner by
Illinois law:

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No. 04-1492 7
2 The 1983 version of Paragraph 153 of Chapter 43 of the Illinois
Revised Statutes is a prior codification of the Liquor Act.
He may not revoke without finding that the licensee has
violated the law; he may make that finding only after
notice and hearing; and he “shall reduce all evidence to
writing and shall maintain an official record of the
proceedings.” In addition, revocation is . . . appealable
to the state Liquor Control Commission.
Id. (quoting Ill. Rev. Stat. ch. 43, ¶ 153 (1983)). 2
Reed applies with equal force to a local liquor control
commissioner’s decision to suspend a license, impose a fine,
or summarily close a licensee’s business. A suspension or
fine may be imposed based on the same findings and subject
to the same procedures as were at issue in Reed. See 235 Ill.
Comp. Stat. 5/7-5. Moreover, although the findings and
procedures relevant to a summary closing differ somewhat
from those highlighted in Reed, we find a commissioner’s
action in this regard analogous to the issuance of a tempo-
rary restraining order, see Fed. R. Civ. P. 65(b), clearly a
judicial function. Beard v. Udall, 648 F.2d 1264, 1269 (9th
Cir. 1981), overruled on other grounds by Ashelman v. Pope,
793 F.2d 1072 (9th Cir. 1986); cf. Dykes v. Hosemann, 776
F.2d 942, 948 n.19 (11th Cir. 1985) (holding that the
issuance of a temporary order of child custody constitutes
a judicial function). Mayor Johnson was therefore perform-
ing a judicial function when he temporarily closed G’s, fined
Killinger, and suspended his license.
Killinger does not seriously dispute that such actions
would normally qualify as judicial functions. He argues,
however, that by ignoring the procedures mandated by the
Liquor Act, Mayor Johnson acted outside of his jurisdiction
and was thereby stripped of the immunity typically afforded
quasi-judicial actors. Killinger asserts that judicial immu-
nity does not apply to “actions, though judicial in nature,

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8 No. 04-1492
taken in the complete absence of all jurisdiction.” Mireles v.
Waco, 502 U.S. 9, 12 (1991).
Although this is a correct statement of the law, it does not
support plaintiff’s case. A quasi-judicial actor enjoys
immunity “for his judicial acts even if his exercise of au-
thority is flawed by the commission of grave procedural
errors.” Stump v. Sparkman, 435 U.S. 349, 359 (1978);
Brokaw v. Mercer County, 235 F.3d 1000, 1015 (7th Cir.
2000); John v. Barron, 897 F.2d 1387, 1391 (7th Cir. 1990).
Stated otherwise, an official does not act “in the complete
absence of all jurisdiction,” Waco, 502 U.S. at 12, merely
because he violates a procedural rule. Mere procedural vio-
lations establish, at worst, that the official acted “in excess
of jurisdiction.” The Supreme Court has illustrated the
distinction as follows:
[I]f a probate judge, with jurisdiction over only wills
and estates, should try a criminal case, he would be
acting in the clear absence of jurisdiction and would
not be immune from liability for his action; on the
other hand, if a judge of a criminal court should
convict a defendant of a nonexistent crime, he would
merely be acting in excess of his jurisdiction and
would be immune.
Stump, 435 U.S. at 357 n.7 (citing Bradley v. Fisher, 80 U.S.
335, 352 (1871)).
As discussed above, the Liquor Act vests the mayor with
the authority to issue fines, suspend licenses, and sum-
marily close licensees’ businesses for short periods. The
mayor did not act in the clear absence of all jurisdiction by
exercising this authority, even if he failed to comply with
the procedures mandated by the Act. Because Johnson en-
joys absolute immunity from liability arising out of these
actions, we need not reach the merits of plaintiff’s claim
against the mayor in his individual capacity.

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No. 04-1492 9
B. Claim Against Port Byron
Although the mayor is entitled to judicial immunity, we
must independently analyze plaintiff’s claim against Port
Byron. This is so because a municipality may not assert the
judicial immunity enjoyed by its official. Reed, 704 F.2d at
953; Devito v. Chi. Park Dist., 83 F.3d 878, 881 (7th Cir.
1996) (“The only immunities available in an official capacity
suit are those that may be asserted by the governmental
entity itself (e.g., Eleventh Amendment immunity or
sovereign immunity).”).
Port Byron may be liable for the mayor’s actions under §
1983 only if a municipal policy caused the constitutional
violation. Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S.
658, 690 (1978). A plaintiff may demonstrate the existence
of an official policy in one of three ways: “proof of an express
policy causing the loss, a widespread practice constituting
custom or usage that caused the loss, or causation of the loss
by a person with final policymaking authority.” Kujawski v.
Bd. of Comm’rs, 183 F.3d 734, 737 (7th Cir. 1999). Killinger
does not contend that an express policy or widespread
custom caused his injury. He argues only that Chief
Rathburn held final policymaking authority, and that the
chief ratified Mayor Johnson’s decision to close G’s.
Killinger has failed to establish, however, that either Chief
Rathburn or Mayor Johnson held final policymaking
authority with respect to the challenged actions.
“In order to have final policymaking authority, an official
must possess ‘[r]esponsibility for making law or setting po-
licy,’ that is, ‘authority to adopt rules for the conduct of gov-
ernment.’ ” Rasche v. Village of Beecher, 336 F.3d 588, 599
(7th Cir. 2003) (quoting Auriemma v. Rice, 957 F.2d 397,
401 (7th Cir. 1992)). The mere authority to implement
pre-existing rules is not the authority to set policy. Id. at
601; Auriemma, 957 F.2d at 401; Eversole v. Steele, 59 F.3d
710, 717 (7th Cir. 1995). “A person’s status as a final

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10 No. 04-1492
policymaker under § 1983 is a question of state or local
law.” Kujawski, 183 F.3d at 737. Courts identify those offi-
cials with final policymaking authority by “[r]eviewing the
relevant legal materials, including state and local positive
law, as well as ‘custom or usage having the force of law.’ ”
Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)
(quoting City of St. Louis v. Praprotnick, 485 U.S. 112, 124
n.1 (1988)) (internal quotations omitted). A municipality
may also be liable for the actions of an employee who lacks
final policymaking authority if that employee’s actions were
“ratified” by the municipality. Baskin v. City of Des Plaines,
138 F.3d 701, 705 (7th Cir. 1998). “[A] plaintiff seeking to
establish a § 1983 claim against a municipality based on a
‘ratification’ theory must allege that a municipal official
with final policymaking authority approved the subordi-
nate’s decision and the basis for it.” Id.
Plaintiff’s municipal liability theory fails because he has
not identified any state or local positive law, or custom
having the force of law, that grants either the chief or the
mayor authority to adopt rules that are relevant to this
case. See Kujawski, 183 F.3d at 738 (“our task is to deter-
mine whether the official in question was a final policymaker
for the local government ‘in a particular area, or on a par-
ticular issue’ ”) (quoting McMillian v. Monroe County, 520
U.S. 781, 785 (1997)). The only arguable “policy” instituted
by the chief was his decision to require that adults of drink-
ing age wear wristbands during Tug Fest. We fail to see how
the use of wristbands to police underage drinking could
cause a constitutional violation. Rather, the thrust of
plaintiff’s claim is that the mayor violated his due process
rights by failing to observe the procedures mandated by the
Liquor Act. The very nature of this allegation, however,
shows that plaintiff’s claim lacks merit. The Illinois
General Assembly, not the mayor, established the proce-
dures applicable to temporary closings, suspensions, and
fines under the Act. If the mayor violated these procedures,

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No. 04-1492 11
he was acting contrary to—not setting—the policy of the
State. Because the mayor does not hold final policymaking
authority to establish procedural rules, Port Byron is not
liable for his actions.
III. Conclusion
We hold that Mayor Johnson is protected by absolute
judicial immunity. Moreover, the plaintiff has failed to es-
tablish that a policy of Port Byron caused the alleged con-
stitutional violation. Accordingly, we A FFIRM the district
court’s grant of summary judgment in favor of both defen-
dants.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-24-04

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