In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3889

Michael Pitts and Charles Lawson,

Plaintiffs-Appellants,

v.

City of Kankakee, Illinois, et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the Central District of Illinois.
No. 99 C 2281--Michael P. McCuskey, Judge.

Argued March 7, 2001--Decided September 24, 2001



  Before Diane P. Wood, Evans, and Williams,
Circuit Judges.

  Diane P. Wood, Circuit Judge. Like the
plaintiff in Albiero v. City of Kankakee,
246 F.3d 927 (7th Cir. 2001), Michael
Pitts and Charles Lawson brought a suit
under the federal civil rights statute,
42 U.S.C. sec. 1983, challenging the City
of Kankakee’s placement of "slum" signs
on certain properties. There, however,
the similarity between these two cases
ends. In Albiero, this court considered
the merits of an equal protection
challenge to the City’s actions labeling
the plaintiff a "slum lord," and affirmed
a judgment for the City. Here the
question is procedural: did these
plaintiffs sue too late? The magistrate
judge, and then the district court,
concluded that the complaint was time-
barred. We agree with this assessment and
therefore affirm the district court’s
judgment dismissing the claims.

I

  According to the complaint, whose
allegations we accept for present
purposes, see Kennedy v. Nat’l Juvenile
Detention Ass’n, 187 F.3d 690, 694 (7th
Cir. 1999), plaintiffs Pitts and Lawson
publicly supported and campaigned for the
opponent of Kankakee Mayor Donald E.
Green in the elections held in 1993 and
1997. Pitts and Lawson are officers in
the Kankakee Landlords Association, or
KLA. Beginning in 1994, they also
publicly opposed various city policies
relating to landlord licensing. During
the 1997 mayoral campaign, the KLA
invited candidates to participate in a
public forum. Mayor Green did not wish to
participate, but Corporation Counsel
Christopher Bohlen asked if he could
speak on the Mayor’s behalf. The KLA
refused, and thereafter Mayor Green and
Bohlen developed a plan to retaliate
against Pitts and Lawson by embarrassing
them.

  The retaliation took the form of strict
enforcement of the City’s codes. First,
in January 1997, Pitts received a notice
from the City stating that the owner of
the property located at 319 South Albert
had 180 days in which to correct
specified violations of the City’s
building code. The City sent this notice
to Pitts even though it was aware that
Pitts did not own the property. After
receiving the notice, Pitts, on behalf of
the actual owner, made the required
repairs. Despite the completion of the
repairs, on June 11, 1997, the City
placed a sign on the property identifying
Pitts as the owner, listing his business
address and telephone number, labeling
the address "SLUM PROPERTY," and
declaring that "the owner is in violation
of city code and chooses not to bring the
property into compliance thereby
significantly contributing to the blight
in this neighborhood." On June 13, 1997,
the City placed a similar sign on rental
property owned by Lawson. Finally, on
June 30, 1997, the City placed another
sign on property located at 921 East
Merchant, once again erroneously
identifying Pitts as the owner.

  On August 16, 1999, the Kankakee City
Council ordered the removal of the sign
located on the 319 South Albert property.
The defendants, however, did nothing, and
the sign stayed there until April 7,
2000. (It is unclear whether they finally
removed it on the latter date or if it
disappeared in some other way.) On
October 27, 1999, Lawson sold his
property to Neighborhood Partners of
Kankakee, Inc., which made its purchase
with the help of a loan from the City.
Despite this sale and its own
participation in the transaction, the
City did not remove the slum sign
identifying Lawson as the owner until
December 3, 1999.

  On November 18, 1999, Pitts and Lawson
brought suit alleging that the City,
Mayor Green, and Corporation Counsel
Bohlen had violated their First Amendment
rights by placing and maintaining the
"SLUM PROPERTY" signs on the three
properties in retaliation for the
plaintiffs’ political opposition. Later,
on April 27, 2000, they filed an amended
complaint. The defendants filed a motion
to dismiss the amended complaint, which
was referred to Magistrate Judge
Bernthal. He prepared a report for the
district court that recommended granting
the defendants’ motion on the ground that
the case was barred by Illinois’s two-
year statute of limitations, which
applies to sec. 1983 cases. The signs
were all posted in June 1997, yet the
plaintiffs waited approximately 29 months
to file their action. The plaintiffs
responded that this was a "continuing
violation," and thus allowed them to file
within two years of the last date when
the signs were posted. That would have
given them until April 7, 2002, for the
South Albert property and December 3,
2001, for Lawson’s property--dates that
their November 1999 complaint easily
satisfied; no date was specified for the
removal of the sign on the Merchant
property, although one allegation might
permit the inference that April 7, 2000,
was also the time when it was removed.
The magistrate judge was not persuaded
that this fit within the continuing
violation doctrine; he saw the continuing
presence of the signs as a lingering
effect of the previous violation. The
district court agreed and dismissed the
complaint.

II

  As the district court recognized, the
fate of this case turns on whether the
plaintiffs have brought their suit in
time. Their first effort to convince us
that they have done so rests on the
continuing violation concept. The
continuing violation doctrine is, as we
noted in Heard v. Sheahan, 253 F.3d 316
(7th Cir. 2001), best characterized as a
doctrine governing the accrual of a
claim. Id. at 319. Normally, the statute
begins to run from the date of an injury,
but in several situations that rule does
not apply. One is when it "would be
unreasonable to expect the plaintiff to
perceive offensive conduct," or when the
earlier violation may be recognizable as
actionable only in light of later events.
See Hardin v. S.C. Johnson & Son, Inc.,
167 F.3d 340, 344 (7th Cir. 1999). In
other instances, illustrated well by the
Supreme Court’s decision in Bazemore v.
Friday, 478 U.S. 385 (1986), each day or
week brings a fresh wrong. In Bazemore,
for purposes of a Title VII wage
discrimination claim, the Court endorsed
Justice Brennan’s statement that "[e]ach
week’s paycheck that delivers less to a
black than to a similarly situated white
is a wrong actionable under Title
VII,regardless of the fact that this
pattern was begun prior to the effective
date of Title VII." Id. at 395-96. To
similar effect is a district court case
on which the plaintiffs rely, Gonzalez v.
N. Township of Lake County, 800 F. Supp.
676 (N.D. Ind. 1992), reversed on grounds
unrelated to the statute of limitations,
4 F.3d 1412 (7th Cir. 1993). There the
plaintiffs wanted to challenge the
maintenance of a religious monument that
had been erected 27 years before the
complaint was filed. The district court
decided that the case was not time-
barred, because the claim accrued every
day the monument remained on display. It
dismissed on other grounds, but this
court reversed, upheld the plaintiffs’
standing, and found that the display
violated the Establishment Clause. See
Gonzalez, 4 F.3d at 1422.

  Drawing the line between something that
amounts to a "fresh act" each day and
something that is merely a lingering
effect of an earlier, distinct, violation
is not always easy. (Indeed, this area is
so confused that the Supreme Court
recently granted certiorari in Morgan v.
National Railroad Passenger Corp., 232
F.3d 1008 (9th Cir. 2000), cert. granted,
121 S. Ct. 2547 (2001) (No. 00-1614),
which involves precisely this point. Our
task at present, however, is to apply the
law as it now stands to the best of our
ability.) In this case we think that the
district court was correct to
characterize the Pitts/Lawson complaint
as merely a lingering effect of an
earlier violation. The point of Bazemore
was that as long as the discriminatory
paychecks keep coming, it is still
possible to implement a remedy that
eradicates that discrimination, though
the Court noted as well that recovery
might not be permitted for pre-1972 acts
of discrimination. 478 U.S. at 395. Here,
in contrast, the City took only one
action for each parcel of land, and each
action affected only one person: on
particular dates, it posted "SLUM
PROPERTY" signs. As of that moment, the
plaintiffs knew they had suffered an
injury; and nothing new happened
thereafter to change the nature of the
injury, save for a kind of continuing
defamation that we discuss below.

  The Gonzalez situation comes closer to
this case, but in the final analysis we
consider it distinguishable as well. The
First Amendment’s command that there be
no establishment of religion stands on a
different footing from a private
individual’s interest in avoiding
defamation. All citizens have an interest
in preventing government from sponsoring
one particular religion, however worthy
the tenets of that faith may be. Indeed,
it might not be too much to say that an
important part of the reason why the
United States has been fortunate enough
to escape most of the religious conflict
that has plagued other parts of the world
is that the Constitution itself demands
that the government maintain a position
of absolute neutrality among religions.
Potential violations of this principle
may not be obvious, however, to those who
share a common background. In a
predominantly Christian community, it may
take a Buddhist, or a Moslem, or a Jew,
or an atheist, to call to the
authorities’ attention a possible
violation of the Establishment Clause.
The rights of such citizens do not expire
simply because a monument has been
comfortably unchallenged for twenty
years, or fifty years, or a hundred
years. Each day, as our own opinion in
Gonzalez implicitly recognized, brings a
new duty on the government’s part, and a
corresponding new right to seek
vindication of the constitutional right
in question.

  The complaint Pitts and Lawson wish to
raise is significantly different. At
bottom, they wish to say that the City is
defaming them by identifying them as
owners of slum property, and that it is
doing so at Mayor Green and Corporation
Counsel Bohlen’s instigation to retaliate
against them for their political views.
The City published its insulting
accusations in each case with a single
sign, put up on one day and left
undisturbed for a period of time. Defama
tion alone, of course, is not something
that is ordinarily cognizable under sec.
1983, see Paul v. Davis, 424 U.S. 693
(1976), but here we have a claim of
defamation as a method of retaliation for
the exercise of First Amendment rights.
But this simply rephrases the question:
did the alleged retaliatory acts all
occur in June 1997, or did they continue
each day the signs were on the
properties? The question when a sec. 1983
claim accrued is a characterization issue
that is governed by federal law. See
Wilson v. Garcia, 471 U.S. 261, 270
(1985).

  We think that the best analogy here, for
purposes of deciding when this claim
accrued, is to cases in which a single
publication defames a person, often over
a period of time as copies of that
newspaper, or book, or other material,
circulate around a community. These kind
of claims fall under what is known as the
"single publication rule," recognized
both in the Uniform Single Publication
Act promulgated by the National
Conference of Commissioners on Uniform
State Law, and in the Restatement (2d) of
Torts sec. 577A (1977). As it happens
(though this is not dispositive since we
are dealing with a federal law issue),
Illinois has enacted the Uniform Act. See
740 ILCS 165/1. That statute provides
that a cause of action for libel is
complete at the time of first
publication, and any subsequent
appearances or distributions of copies of
the original publication do not toll the
statute of limitations. See, e.g.,
Founding Church of Scientology of
Washington, D.C. v. American Medical
Ass’n, 377 N.E.2d 158, 160-61 (Ill. App.
1978). Compare also Bryson v. News
America Publications, Inc., 672 N.E.2d
1207, 1222 (Ill. 1996) (holding that a
cause of action for defamation accrues on
the date the defamatory material is
published to a third party). The signs on
the three pieces of property at issue
here are very much like a statement in a
newspaper or on a billboard. For
precisely the same reasons that the
Restatement (2d) of Torts sec. 577A
highlights, which relate to the need to
prevent a multiplicity of lawsuits, we
conclude that the single publication
theory should apply to the present
situation. The retaliatory acts that form
the basis of the complaint Pitts and
Lawson filed were complete in 1997. Only
their effects lingered on until the signs
were removed.

  The plaintiffs also argue that the
defendants’ deliberate refusal to take
down the offending signs was a fresh
violation that makes this lawsuit timely.
But this argument runs up against the
principle, by now well established, that
the refusal to undo a violation is not a
"fresh act" of discrimination (or here,
retaliation), but instead is a persisting
effect of past discrimination that does
not affect the running of the statute of
limitations. See Sharp v. United
Airlines, Inc., 236 F.3d 368, 373 (7th
Cir. 2001); see also Christiansen v. APV
Crepaco, Inc., 178 F.3d 910, 916 (7th
Cir. 1999) (union’s continuous failure to
file a grievance is not a continuing
violation).

  It is undisputed that Pitts and Lawson
did not file their lawsuit until November
1999, some 29 months after the three
signs were posted, and thus 5 months
beyond the two years permitted for
actions under sec. 1983 in Illinois. We
therefore Affirm the judgment of the
district court dismissing their claims as
time-barred.
