Case: 1:18-cv-04289 Document #: 37 Filed: 08/14/18 Page 1 of 24 PageID #:198

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ELAINE JACOBSON, PAUL PITALIS, )

ROBERT QUANE, GEORGIA NUT COMPANY, )
and VILLAGE OF SKOKIE, an Illinois Municipal )
Corporation, )
)
Plaintiffs, )
)
vs. ) Case No. 18 cv 04289
)
CITY OF EVANSTON, an Illinois Municipal )
Corporation, STEPHEN HAGERTY, Individually, )
and as Mayor of Evanston, JUDY FISKE, )
Individually, PETER BRAITHWAITE, )
Individually, MELISSA WYNNE, Individually, )
DONALD WILSON, Individually, ROBIN RUE )
SIMMONS, Individually, THOMAS SUFFREDIN, )
Individually, ELEANOR REVELLE, Individually, )
ANN RAINEY, Individually, and CICELY )
FLEMING, Individually, )
)
Defendants. )

Memorandum of Law in Support of Defendants’ Rule 12(b)(6) Motion to Dismiss

Plaintiffs’ Complaint

Defendants City of Evanston, Mayor Stephen Hagerty, Alderman Judy Fiske, Alderman

Peter Braithwaite, Alderman Melissa Wynne, Alderman Robin Rue Simmons, Alderman

Thomas Suffredin, Alderman Eleanor Revelle, Alderman Ann Rainey, Alderman Donald

Wilson, and Alderman Cicely Fleming, through their attorneys, respectfully submit this

memorandum of law in support of their motion to dismiss, with prejudice, Plaintiffs’ Complaint

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

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Table of Contents

Introduction ................................................................................................................................... 1

Legal Standard .............................................................................................................................. 3

Argument ....................................................................................................................................... 4

I. SKOKIE HAS NO FUNDAMENTAL RIGHT TO WATER FROM EVANSTON AND

INSTEAD DEPENDS ENTIRELY UPON A STATE STATUTE FOR THE RIGHT TO
PURCHASE WATER FROM EVANSTON AND THAT STATUTE ALSO DICTATES
THAT ANY DISPUTE OVER RATES SHOULD BE PRESENTED TO THE CIRCUIT
COURT OF COOK COUNTY ................................................................................................ 4

II. PLAINTIFFS DO NOT HAVE STANDING AS THIS ACTION IS NOT RIPE. ......... 5

III. THE INDIVIDUAL PLAINTIFFS HAVE NOT ALLEGED, BECAUSE THEY

CANNOT ALLEGE, THE ELEMENTS OF A CIVIL RIGHTS CLAIM .......................... 7

A. No Violation of Procedural Due Process Rights. ............................................................. 7

B. No Violation of Substantive Due Process Rights. ............................................................. 9

C. No Violation of the Equal Protection Clause. ................................................................ 10

IV. PLAINTIFFS ARE NOT ENTITLED TO SEEK DECLARATORY JUDGMENT . 11

V. EVEN ASSUMING PLAINTIFFS COULD PLEAD A FEDERAL CAUSE, THIS

COURT SHOULD NEVERTHELESS ABSTAIN............................................................... 11

A. This Court should abstain pursuant to the Younger abstention doctrine. .................... 11

B. This Court should abstain pursuant to the Colorado River abstention doctrine. ......... 13

C. This Court should abstain from the declaratory judgment counts pursuant to the
Brillhart-Wilton abstention doctrine.............................................................................. 14

VI. THE INDIVIDUAL DEFENDANTS ARE ENTITLED TO QUALIFIED

IMMUNITY ............................................................................................................................. 16

Conclusion ................................................................................................................................... 17

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Table of Authorities
Cases

Brosseau v. Haugen, 543 U.S. 194, 199 (2004) ........................................................................... 16

Alliance to End Repression v. City of Chicago, 820 F.2d 873, 875 (7th Cir. 1987)..................... 16

Am. Home Ins. Co. v. Martin, 1992 WL 123132, at *2 (N.D. Ill. 1992) ...................................... 11

Anderson v. Creighton, 483 U.S. 635, 640 (1987) ....................................................................... 17

Arnold v. KJD Real Estate, LLC, 752 F.3d 700, 707 (7th Cir. 2014) ........................................... 15

Ashcroft v. al-Kidd, 563 U.S. 731 (2011) ..................................................................................... 17

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ................................................................................... 3

Atlas IP, LLC v. Exelon Corp., 189 F. Supp. 3d 768, 771 (N.D. Ill. 2016) .................................... 3

Bakalis v. Golembeski, 35 F.3d 318, 323 (7th Cir. 1994) ............................................................. 16

Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491, 495 (1942) ..................................................... 15

City & Cty. of San Francisco, Calif. v. Sheehan, 135 S. Ct. 1765, 1774 (2015) .......................... 16

City of E. St. Louis v. Circuit Court for Twentieth Judicial Circuit, St. Clair Cty., Ill., 986 F.2d
1142, 1144 (7th Cir. 1993) .......................................................................................................... 6

City of Evanston v. Village of Skokie, 2017-CH-12966 .................................................................. 4

Coleman v. Miller, 307 U.S. 433, 441 (1939)................................................................................. 6

Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976)....................... 13

Dietchweiler by Dietchweiler v. Lucas, 827 F.3d 622, 629 (7th Cir. 2016) ................................... 8

Freed v. J.P. Morgan Chase Bank, N.A., 756 F.3d 1013, 1018 (7th Cir. 2014)........................... 13

FreeEats.com, Inc. v. Indiana, 502 F.3d 590, 596 (7th Cir.2007) ................................................ 12

Hamerski v. Belleville Area Special Servs. Coop., 302 F. Supp. 3d 992 (S.D. Ill. 2018) .............. 7

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) .......................................................................... 16

Harper v. Pub. Serv. Comm'n of W.VA., 396 F.3d 348, 354 (4th Cir. 2005) ................................ 12

Hirata Corp. v. J.B. Oxford & Co., 193 F.R.D. 589, 592–93 (S.D. Ind. 2000).............................. 3

Int'l Equip. Trading, Ltd. v. Illumina, Inc., 2018 WL 1087641, at *6 (N.D. Ill. 2018) ................ 14

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Kurr v. Vill. of Buffalo Grove, 912 F.2d 467 (7th Cir. 1990) ......................................................... 5

Lee v. City of Chi., 330 F.3d 456, 467 (7th Cir.2003) .................................................................... 9

Limestone Dev. Corp. v. Vill. of Lemont, 473 F. Supp. 2d 858, 868 (N.D. Ill. 2007) .................... 4

Magnuson v. City of Hickory Hills, 933 F.2d 562, 567 (7th Cir.1991) .......................................... 5

Manistee Apts., LLC v. City of Chicago, 844 F.3d 630, 633 (7th Cir. 2016) ................................. 7

Nationwide Ins. v. Zavalis, 52 F.3d 689, 692 (7th Cir.1995)........................................................ 15

New York Cent. R. Co. v. Illinois Commerce Comm'n, 77 F. Supp. 520 (N.D. Ill. 1948) .............. 9

Pearson v. Callahan, 555 U.S. 223, 231 (2009) ........................................................................... 17

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 11 (1987)..................................................................... 12

Plumhoff v. Rickard, 134 S. Ct. 2012 (2014) ................................................................................ 17

R.R. Comm'n of California v. Pac. Gas & Elec. Co., 302 U.S. 388, 393–94 (1938) ..................... 8

Saucier v. Katz, 533 U.S. 194, 200-01 (2001) .............................................................................. 16

Sheehan, 135 S. Ct. 1765 .............................................................................................................. 17

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). ................................................................... 5

Srail v. Vill. of Lisle, Ill., 588 F.3d 940 (7th Cir. 2009).................................................................. 5

Sterling v. Vill. of Maywood, 579 F.2d 1350 (7th Cir. 1978) ......................................................... 7

United Gas Pub. Serv. Co. v. State of Texas, 303 U.S. 123 (1938) ................................................ 9

United States v. Salerno, 481 U.S. 739, 746 (1987) ....................................................................... 9

United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 272 (2010) ......................................... 8

Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir.1993) .................... 3

Vill. of Niles v. City of Chicago, 201 Ill. App. 3d 651, 662 ............................................................ 5

Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013).............................................................. 4

Younger v. Harris, 401 U.S. 37 (1971) ......................................................................................... 11

Statutes

70 ILCS 22605/26 ........................................................................................................................... 8

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70 ILCS 2605/26 ..................................................................................................................... 12, 14

Rules

Fed.R.Civ.P. 12(b)(6)...................................................................................................................... 3

Rule 12(b)(6) ................................................................................................................................... 3

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Introduction

The Village of Skokie (and some of its water customers) filed this meritless lawsuit in

furtherance of Skokie’s long standing effort to avoid paying the actual cost of the premium water

service it requests and receives from the City of Evanston. As demonstrated below, the suit

should be dismissed with prejudice. Neither Skokie nor the individual Plaintiffs can bootstrap

their way into federal court.

Skokie, like Evanston, is a creature of the Illinois Constitution and Illinois law and,

according to the State of Illinois, this entire dispute should be in a State courtroom. 70 ILCS

2605/26 obligates Evanston to sell some of the water it draws from Lake Michigan to

neighboring municipalities like Skokie. 70 ILCS 2605/26 authorizes Evanston to charge Skokie

for delivering that water and it sets limits on the rates that Evanston can charge. Skokie demands

that Evanston deliver water to Skokie’s system at 3 separate locations at full pressure (instead of

just one location like other municipalities), but Skokie doesn’t want to pay for that premium

service. 70 ILCS 2605/26 also mandates that when the municipalities cannot agree on the rates to

be paid, “such rates shall be fixed and determined by the Circuit Court of Cook County upon

petition filed therein;…” As required, when Skokie refused to pay the rates set by Evanston,

Evanston promptly filed the mandated petition in the Circuit Court: City of Evanston v. Village of

Skokie, 2017 CH 12966. That’s where this case belongs.

Skokie, however, hopes that this federal suit will force Evanston to grant Skokie an

otherwise undeserved discount against the actual costs incurred by Evanston to supply Skokie

with the level of water services Skokie has requested. The entire pretext of the Complaint is that

Skokie has a federally guaranteed fundamental right to receive water from Evanston. Not true.

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There is no fundamental right to water (much less water from Evanston) and that flaw is fatal to

every single Count in the Complaint.

Beyond the fact that this is a simple state court matter, the claims presented here are not

ripe for adjudication and the Plaintiffs do not have standing to bring them. Skokie does not

allege—because it cannot allege—that is has actually paid the higher rates (in fact it unilaterally

took a discount) and a municipality has no standing to be a civil rights plaintiff under 42 USC §

1983. Likewise, the individual plaintiffs are NOT customers of Evanston, they have not paid

anything to Evanston, and Evanston has not deprived them of any rights.

As for the substantive allegations, the Complaint fails to set forth any violation of civil

rights. Evanston provided procedural due process through its formal adoption of Ordinance 95-0-

17 at an open meeting and—after Skokie refused to pay the rates set forth therein--through its

filing of the statutorily mandated petition in the Circuit Court of Cook County. Because Illinois

has made clear that no “fundamental right” is implicated in 70 ILCS 2605/26, and because a rate

increase within statutory rate limits (Skokie will still pay less than Evanston residents) does not

“shock the conscience,” the Plaintiffs have not suffered any violation of their substantive due

process rights. Neither have Plaintiffs pled a valid equal protection claim as there is no

fundamental right at stake and Evanston’s Ordinance sets forth the rational basis for the rates to

be charged.

Plaintiffs’ claims for declaratory relief must similarly be dismissed because the

declaratory relief would be duplicative of the proceeding pending in the Circuit Court.

Even if this Court thought that the Plaintiffs could cobble together some recognizable

federal claim, the Court should nevertheless abstain from ruling in the matter under the Younger,

Colorado River, and Brillhart-Wilton abstention doctrines.

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Finally, each of the individual elected officials enjoys—as Skokie knows—immunity

from these claims and, accordingly, each should be dismissed from the litigation with prejudice.

In sum, an examination of the Complaint and a review of the law lead to the inexorable

conclusion that not one of the counts has any merit and therefore should be dismissed with

prejudice. This lawsuit is a waste of this Court’s time and the municipal tax dollars used to bring

it -- and now dismiss it.

Legal Standard

A complaint that fails to state a claim for relief may be dismissed. Fed.R.Civ.P. 12(b)(6).

When deciding a motion to dismiss under Rule 12(b)(6), a court is required to accept as true all

of Plaintiff’s “well-pleaded factual allegations and to view them in the light most favorable to it

as the non-moving party.” Atlas IP, LLC v. Exelon Corp., 189 F. Supp. 3d 768, 771 (N.D. Ill.

2016). In the context of a 12(b)(6) motion, “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009).

In addition to the well pleaded factual allegations of the Complaint, this Court is authorized

to consider Exhibits A – C (attached to this memorandum) is deciding the motion. In federal

court, “[a] plaintiff is under no obligation to attach to her complaint documents upon which her

action is based, but a defendant may introduce certain pertinent documents if the plaintiff failed

to do so.” Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir.1993).

“[I]f a document is specifically referenced by the complaint and central to the plaintiff’s claim,

we may consider that document as part of the pleadings if it is attached to a defendant’s motion

attacking the sufficiency of the complaint.” Hirata Corp. v. J.B. Oxford & Co., 193 F.R.D. 589,

592–93 (S.D. Ind. 2000). “[W]hen a plaintiff attaches to the complaint a document that qualifies

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as a written instrument, and her complaint references and relies upon that document in asserting

her claim, the contents of that document become part of the complaint and may be considered as

such when the court decides a motion attacking the sufficiency of the complaint.” Williamson v.

Curran, 714 F.3d 432, 436 (7th Cir. 2013).

Here, Plaintiff’s Complaint references Evanston Ordinance 95-O-17 multiple times. See

Doc. 1, ¶¶ 1, 46-50. This document is central to the Complaint and attached hereto as Exhibit A.

Moreover, the Complaint references an expired contract between Evanston and Skokie to supply

water to Skokie. (Id. at ¶ 32) This written instrument articulated the parties’ rights and

expectations is therefore attached as Exhibit B and incorporated by reference. Additionally, this

Court may take judicial notice of pending litigation between the City of Evanston and the Village

of Skokie in state court captioned City of Evanston v. Village of Skokie, 2017-CH-12966. See

Limestone Dev. Corp. v. Vill. of Lemont, 473 F. Supp. 2d 858, 868 (N.D. Ill. 2007). The

Complaint filed in that matter is attached as Exhibit C and incorporated herein.

Argument

I
SKOKIE HAS NO FUNDAMENTAL RIGHT TO WATER FROM EVANSTON
AND INSTEAD DEPENDS ENTIRELY UPON A STATE STATUTE
FOR THE RIGHT TO PURCHASE WATER FROM EVANSTON
AND THAT STATUTE ALSO DICTATES THAT ANY DISPUTE OVER RATES
SHOULD BE PRESENTED TO THE CIRCUIT COURT OF COOK COUNTY

Skokie’s only “right” to receive Lake Michigan water from Evanston is that statutory

right created by 70 ILCS 2605/26. That statutory “right” is further refined by the express

mandate that if there is a dispute over the rate Skokie is to pay Evanston for that water service,

then the dispute is to be determined by the Circuit Court of Cook County. Id. The plaintiffs

should be sent back to the Circuit Court of Cook County and this cause dismissed.

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The major premise of Plaintiffs’ Complaint is that Evanston infringed upon Plaintiffs’

federally protected “fundamental right to water.” Doc. 1, ¶ 1 That premise is false. There is no

fundamental right to receive water. See Kurr v. Vill. of Buffalo Grove, 912 F.2d 467 (7th Cir.

1990) (“Mr. Kurr does not have a fundamental right to an uninterrupted supply of water from the

Village.”); Magnuson v. City of Hickory Hills, 933 F.2d 562, 567 (7th Cir.1991) (“We do not

consider the right to continued municipal water service such a fundamental right...”).

In a case directly on point and involving the very same statute that obligates Evanston to

sell Lake Michigan water to Skokie, Niles disputed the rates charged by the City of Chicago for

the Lake Michigan water that Chicago sold to Niles. The Illinois Appellate Court held that such

a dispute over water rates “does not involve a suspect class or fundamental right.” Village of

Niles v. City of Chicago, 201 Ill. App. 3d 651, 662 (1st Dist. 1990). See also Srail v. Vill. of

Lisle, Ill., 588 F.3d 940 (7th Cir. 2009) (the Constitution does not create positive rights to

municipal services). Thus, Skokie’s right to purchase Lake Michigan water from Evanston is

entirely a matter of state law and the rate dispute is exclusively a matter for the state court.

II.
PLAINTIFFS DO NOT HAVE STANDING AS THIS ACTION IS NOT RIPE.

The Complaint does not allege that a single plaintiff has, in fact, suffered any actual

injury. “[A] plaintiff seeking relief in federal court must first demonstrate that he has standing to

do so, including that he has ‘a personal stake in the outcome,’ distinct from a ‘generally available

grievance about government.” Gill v. Whitford, 138 S. Ct. 1916, 1923 (2018). In order to have

standing, “[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the

challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial

decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). “The plaintiff, as the party

invoking federal jurisdiction, bears the burden of establishing these elements. Where, as here, a

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case is at the pleading stage, the plaintiff must ‘clearly…allege facts demonstrating’ each

element.” Id. (citation omitted).

Here, the Plaintiffs have not alleged that they suffered any injury in fact traceable to

Evanston’s actions—nor can they. Skokie does not allege that it has ever paid the rates set forth

in the new Ordinance (in fact, as set forth in Exhibit C, Skokie’s refusal to pay prompted the

filing in the Circuit Court of Cook County). Under 70 ILCS 2605/26, Skokie will have to pay for

its water service and will pay at the rate approved by the Circuit Court—thus Skokie will never

suffer any injury.

As for the individual customer plaintiffs, they have no relationship with Evanston.

Consistent with the governing terms of 70 ILCS 2605/26, the water supply agreement is between

the municipalities. See Ex. B, p. 9. The most recent contract states that Evanston will provide

water to Skokie, which Skokie will then distribute to its customers. Id. It is Skokie’s decision as

to what its customers pay for water, not Evanston’s. Because there is nothing in the Complaint

showing that the individual Plaintiffs’ injuries are traceable to anything that Defendants have

done, the Plaintiffs do not have standing now and never will have standing in the future.

Furthermore, Skokie does not have standing to bring any civil rights claims because a

municipality is not a person protected by the Fourteenth Amendment and therefore cannot be a

plaintiff in a § 1983 suit: “[A] city or other municipality cannot bring a suit under 42 U.S.C. §

1983.” Rockford Board of Education v. Illinois State Board of Education,

150 F.3d 686, 688 (7th Cir.1998); City of E. St. Louis v. Circuit Court for Twentieth Judicial

Circuit, St. Clair Cty., Ill., 986 F.2d 1142, 1144 (7th Cir. 1993) (holding that “[b]ecause East St.

Louis is not a ‘person,’ it cannot invoke the protection of the Fifth or Fourteenth Amendments.”).

See also, Coleman v. Miller, 307 U.S. 433, 441 (1939).

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III.
THE INDIVIDUAL PLAINTIFFS HAVE NOT ALLEGED,
BECAUSE THEY CANNOT ALLEGE,
THE ELEMENTS OF A CIVIL RIGHTS CLAIM

A. No Violation of Procedural Due Process Rights.

The Plaintiffs’ lone allegation concerning their procedural due process rights is that

Evanston passed an Ordinance raising the rates for water service without notice and an

opportunity to be heard. Cmplt. ¶¶ 101-104; 265-269. However, the Plaintiffs have not alleged

that the Defendants deprived them of any liberty or property rights. Moreover, as the Complaint

and the Exhibits to this Memorandum demonstrate, Defendants followed the statutorily

mandated process of 70 ILCS 2605/26, took formal action at an open meeting to pass the

Ordinance setting the rates, and, when Skokie refused to pay as per the Ordinance, Defendants

followed the statute and filed the petition in the Circuit Court of Cook County. Plaintiffs have

received all of the process that is due.

A procedural due process violation occurs when conduct by someone acting under the

color of state law deprives the plaintiff of a protected property interest without due process of

law. Hamerski v. Belleville Area Special Servs. Coop., 302 F. Supp. 3d 992 (S.D. Ill. 2018). “To

state a claim for a procedural due process violation, a plaintiff must demonstrate (1) a cognizable

property interest; (2) a deprivation of that property interest; and (3) a denial of due process.”

Manistee Apts., LLC v. City of Chicago, 844 F.3d 630, 633 (7th Cir. 2016).

Courts have held that a party does not have a constitutionally protected property interest

in water service. See Sterling v. Vill. of Maywood, 579 F.2d 1350 (7th Cir. 1978) (holding that a

tenant had no constitutionally protected property right to continued water service and, thus, was

not deprived of due process right by the municipality's termination of her water service). Here,

the allegation is not even that water service was cut-off but rather that Evanston raised the rate to

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Skokie for providing Lake Michigan water. Evanston has not deprived the Plaintiffs of any

constitutionally protected property right.

Even if Plaintiffs were being deprived of a property interest, they would not have a

cognizable procedural due process claim here because they have been afforded notice and an

opportunity to be heard. “The fundamental requirement of due process is the opportunity to be

heard ‘at a meaningful time and in a meaningful manner.’” Mathews v. Eldridge, 424 U.S. 319,

333 (1976) (citation omitted). “Due process requires notice ‘reasonably calculated, under all the

circumstances, to apprise interested parties of the pendency of the action and afford them an

opportunity to present their objections.’” United Student Aid Funds, Inc. v. Espinosa, 559 U.S.

260, 272 (2010). “[D]ue process requires ‘that a hearing must be a real one, not a sham or

pretense.’” Dietchweiler by Dietchweiler v. Lucas, 827 F.3d 622, 629 (7th Cir. 2016).

Here, as Exhibit A demonstrates, Evanston properly noticed, considered and adopted the

Ordinance at an open meeting of the corporate authorities. When Skokie failed to pay for its

Lake Michigan water service, Evanston followed 70 ILCS 2506/26 and presented the rate dispute

to the Circuit Court of Cook County, giving Skokie every opportunity to be heard. Indeed, the

entire process surrounding the setting of rates for the sale of Lake Michigan water from one

municipality to another is replete with opportunities to be heard.

Plaintiffs are not the first to make the argument that a proposal to increase the price they

pay for a utility violates their procedural due process rights. This argument has been made many

times and rejected just as many times: see, e.g., R.R. Comm'n of California v. Pac. Gas & Elec.

Co., 302 U.S. 388, 393–94 (1938) (“When the rate-making agency of the state gives a fair

hearing, receives and considers the competent evidence that is offered, affords opportunity

through evidence and argument to challenge the result, and makes its determination upon

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evidence and not arbitrarily, the requirements of procedural due process are met.”); United Gas

Pub. Serv. Co. v. State of Texas, 303 U.S. 123 (1938); New York Cent. R. Co. v. Illinois

Commerce Comm'n, 77 F. Supp. 520 (N.D. Ill. 1948). Plaintiffs’ claim has as much merit as

those claims, which is to say, none.

B. No Violation of Substantive Due Process Rights.

Substantive due process “prevents the government from engaging in conduct that shocks

the conscience…or interferes with rights implicit in the concept of ordered liberty.” United

States v. Salerno, 481 U.S. 739, 746 (1987). “Both the Supreme Court and [the Seventh Circuit]

have emphasized how limited the scope of the substantive due process doctrine is.” Lee v. City of

Chi., 330 F.3d 456, 467 (7th Cir.2003). “Unless a governmental practice encroaches on a

fundamental right, substantive due process requires only that the practice be rationally related to

a legitimate government interest, or alternatively phrased, that the practice be neither arbitrary

nor irrational.” Id. “[W]hen a substantive due-process challenge involves only the deprivation of

a property interest, a plaintiff must show either the inadequacy of state law remedies or an

independent constitutional violation before the court will even engage in this deferential rational-

basis review.” Lee, 330 F.3d at 467.

As set forth above, there is no “fundamental right” at stake in the statutory scheme that

makes Lake Michigan water available to Skokie and, as also shown above, Evanston has not

deprived the Plaintiffs of any property interest. But even if the Court assumes, arguendo, that the

non-customers of Evanston have a property right in the rates Evanston sets for delivering Lake

Michigan water to Skokie, the only inquiry is whether Ordinance 95-O-17 is rationally related to

a legitimate governmental interest. Exhibit A includes the legislative findings that the new rates

will enable Evanston to recoup the costs it incurs for providing water service to Skokie. See Ex.

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A, p. 3. The expired contract (Exhibit B) shows that Skokie demands three delivery points—

which is a premium service. Skokie will still pay less under Ordinance 95-0-17 than Evanston

residents for the same Lake Michigan water, which means the rate increase is unquestionably

within the limits set by 70 ILCS 2605/26. Ordinance 95-0-17 satisfies the rational basis standard

but if questioned, there is an adequate state remedy in the Circuit Court of Cook County (a

remedy mandated by the same statute giving Skokie the right to purchase the Lake Michigan

water in the first place) for resolving the dispute over rates.

C. No Violation of the Equal Protection Clause.

As explained above, Defendants have not violated any of Plaintiffs’ fundamental rights.

Nor are the Plaintiffs members of a suspect class. See Quinn v. Bd. of Educ. of the City of

Chicago, 234 F. Supp. 3d 922, 928 (N.D. Ill. 2017) (“Legislative classifications that are based on

geographical or population criteria do not involve inherently suspect classes.”). The “equal

protection analysis requires strict scrutiny of a legislative classification only when the

classification impermissibly interferes with the exercise of a fundamental right3 or operates to the

peculiar disadvantage of a suspect class.” Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307,

312 (1976). Therefore, so as long as their conduct was rationally related to a legitimate

government interest, there can be no violation of Plaintiffs’ rights under the Equal Protection

Clause. See City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985) (“The

general rule is that legislation is presumed to be valid and will be sustained if the classification

drawn by the statute is rationally related to a legitimate state interest.”). As explained in

Ordinance 95-0-17, there is a rational basis for the new rates. Accordingly, Plaintiffs’ equal

protection claims should be dismissed with prejudice.

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IV.
PLAINTIFFS ARE NOT ENTITLED TO SEEK DECLARATORY JUDGMENT

“Declaratory judgment is appropriate ‘(1) when the judgment will serve a useful purpose in

clarifying and settling the legal relations at issue, and (2) when it will terminate and afford relief

from the uncertainty, insecurity, and controversy giving rise to the proceeding.” Am. Home Ins.

Co. v. Martin, 1992 WL 123132, at *2 (N.D. Ill. 1992). Here, however, Plaintiffs claim for

declaratory relief will do nothing to clarify or settle the parties’ rights or terminate any portion of

the controversy arising between the parties. Skokie will pay for the Lake Michigan water it

receives and the Circuit Court of Cook County will consider and determine whether the rate set

by Evanston is appropriate. Accordingly, this Court should dismiss Plaintiffs’ claims seeking

declaratory relief.

V.
EVEN ASSUMING PLAINTIFFS COULD PLEAD A FEDERAL CAUSE,
THIS COURT SHOULD NEVERTHELESS ABSTAIN

Because there is no fundamental right to purchase water from Evanston and because the

claims do not implicate a federal statute, the U.S. Constitution, or any matter that is of national

concern, the Younger, Colorado River, and Brillhart-Wilton abstention doctrines all make clear

that this Court—even if it thought that Plaintiffs could plead a claim worthy of federal court--

should abstain from ruling and let the specified Illinois court decide the dispute.

A. This Court should abstain pursuant to the Younger abstention doctrine.

The doctrine of abstention articulated in Younger v. Harris, 401 U.S. 37 (1971) requires this

Court to abstain from ruling because there is pending parallel state court litigation that implicates

important state interests. Younger abstention requires federal courts to “abstain from enjoining

ongoing state proceedings that are (1) judicial in nature, (2) implicate important state interests,

and (3) offer an adequate opportunity for review of constitutional claims, (4) so long as no

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extraordinary circumstances—like bias or harassment—exist which auger against abstention.”

FreeEats.com, Inc. v. Indiana, 502 F.3d 590, 596 (7th Cir.2007).

Here, all four of these criteria are met. First, there is a pending judicial proceeding in

state court involving Skokie and Evanston litigating the same underlying facts. Second, this

litigation implicates important state interests. This is litigation is between two municipalities

over an issue—the sale of Lake Michigan water from one municipality to another—that affects

virtually every municipality in the Chicago area. The State has signaled its belief that this is an

issue over which it should have jurisdiction, as it has a statutory scheme in place to deal with this

very issue. See 70 ILCS 2605/26. There is no reason why an Illinois court could not adequately

rule upon the issues Plaintiffs have raised here if they were to file a counterclaim raising these

same issues. There have been no allegations of bias or harassment that would render dubious any

ruling of the Circuit Court of Cook County.

In a civil case, the issue of whether an important state interest is implicated must be

resolved in favor of abstention if the state’s interests in the proceedings are so important that

exercise of the federal judicial power would disregard the comity between the states and the

federal government. Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 11 (1987). For this purpose, when

an interest central to the case implicates the sovereignty and dignity of the state, and when the

other requirements for Younger abstention are met, federal courts should abstain. Harper v. Pub.

Serv. Comm'n of W.VA., 396 F.3d 348, 354 (4th Cir. 2005). The authority of an Illinois

municipality to draw water from Lake Michigan and the rights of other Illinois municipalities to

purchase that water are all governed by an Illinois statutory framework. Those issues do not

implicate the U.S. Constitution or any federal statute, nor do they have any obvious connection

to the federal government or a national issue. The Younger abstention doctrine counsels this

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Court to abstain from ruling on such issues, particularly in the light of the statutory direction that

disputes over the rates for such water should be referred to the Circuit Court of Cook County,.

B. This Court should abstain pursuant to the Colorado River abstention doctrine.

In Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976), the

Supreme Court announced that federal courts should abstain from ruling on a case in federal

court when there is parallel litigation in state court, particularly when the federal and state cases

are about the same underlying issues. Id. at 817-19. Under such circumstances, a federal court

should abstain from ruling because it is a waste of judicial resources for two courts to resolve the

same questions. Id.

To determine whether Colorado River abstention is appropriate, “the court is required to

conduct a two-part analysis. First, the court must determine whether the state and federal court

actions are parallel.” Freed v. J.P. Morgan Chase Bank, N.A., 756 F.3d 1013, 1018 (7th Cir.

2014) (citations omitted). “For a state court case to be parallel to a federal court case under the

Colorado River doctrine, there must be a substantial likelihood that the state litigation will

dispose of all claims presented in the federal case.” Id. (citation omitted). The cases need not be

identical to fulfill the requirement of parallelism, but the court must examine whether

“substantially the same parties are contemporaneously litigating substantially the same issues in

another forum.” Id. at 1018-19.

Here, this litigation is parallel to the proceeding in state court: Substantially the same

parties (i.e. Skokie and Evanston) are litigating substantially the same issues (i.e. whether

Evanston is charging Skokie a reasonable rate for water). Where, as here, the proceedings are

parallel, then the Court should determine whether abstention is proper by weighing the following

factors: (1) whether the state has assumed jurisdiction over property; (2) the inconvenience of the

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federal forum; (3) the desirability of avoiding piecemeal litigation; (4) the order in which

jurisdiction was obtained by the concurrent forums; (5) the source of governing law, state or

federal; (6) the adequacy of state-court action to protect the federal plaintiff’s rights; (7) the

relative progress of state and federal proceedings; (8) the presence or absence of concurrent

jurisdiction; (9) the availability of removal; and (10) the vexatious or contrived nature of the

federal claim. Id. at 1018.

These factors support this Court’s abstention from hearing this matter. The State of

Illinois has assumed jurisdiction over the sale of Lake Michigan water by Evanston to Skokie;

this cause creates piecemeal litigation over issues ancillary to the rate dispute; the state court

case was filed first; the underlying dispute is based upon state law—specifically 70 ILCS

2605/26; 70 ILCS 2605/26 appoints the Circuit Court of Cook County to hear the dispute and

that court is wholly adequate to protect Skokie’s statutory rights; and the absence of any

fundamental or federal issue, combined with the absence of any injury or standing, all

demonstrate the vexatious and contrived nature of this lawsuit. This Court should abstain.

C. This Court should abstain from the declaratory judgment counts pursuant to the
Brillhart-Wilton abstention doctrine.

Plaintiffs also make claims pursuant to the Declaratory Judgment Act (735 ILCS 5/2-701,

et seq.). That Act gives this Court discretion to refrain from issuing a declaratory judgment if it

does not believe doing so would be appropriate. See, Int'l Equip. Trading, Ltd. v. Illumina, Inc.,

2018 WL 1087641, at *6 (N.D. Ill. 2018) (“Even if a court considers the declaratory action

otherwise justiciable, it is within our discretion to decline to consider a declaratory judgment

action.”).

A variant of Colorado River abstention, “Wilton–Brillhart abstention applies when a

federal court is called upon to proceed in a declaratory judgment suit where another suit is

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pending in state court presenting the same issues, not governed by federal law, between the same

parties.” Arnold v. KJD Real Estate, LLC, 752 F.3d 700, 707 (7th Cir. 2014). In such a case, “the

question for [the] district court…is ‘whether the questions in controversy between the parties to

the federal suit…can better be settled in the proceeding pending in the state court.’” Arnold v.

KJD Real Estate, LLC, 752 F.3d 700, 707 (7th Cir. 2014) (citations omitted).

Relevant factors to this inquiry include: (a) the scope of the pending state court

proceeding and the nature of defenses there, (b) whether the claims of all parties in interest can

satisfactorily be adjudicated in that proceeding, (c) whether necessary parties have been joined,

(d) whether such parties are amenable to process in that proceeding, and (e) whether going

forward with the declaratory action will serve a useful purpose in clarifying the legal obligations

and relationships among the parties or will merely amount to duplicative and piecemeal

litigation. Nationwide Ins. v. Zavalis, 52 F.3d 689, 692 (7th Cir.1995).

Again, the dispute here arises entirely under an Illinois statute that requires rate disputes

to be decided in the Circuit Court of Cook County—where the parties are already in litigation

over these issues. Skokie (and its customers) will not receive water from Evanston for free and

the Circuit Court of Cook County will declare the proper rate. Thus, this litigation is duplicative.

As the Supreme Court has explained, “it would be uneconomical as well as vexatious for a

federal court to proceed in a declaratory judgment suit where another suit is pending in a state

court presenting the same issues, not governed by federal law, between the same parties.”

Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491, 495 (1942). This Court should utilize the

relatively broad discretion given to it under the Brillhart-Wilton abstention doctrine and the

Declaratory Judgment Act and abstain from hearing the counts seeking declaratory relief.

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VI.
THE INDIVIDUAL DEFENDANTS ARE ENTITLED TO
QUALIFIED IMMUNITY

The individual Defendants include the Mayor and members of Evanston’s City Council.

These individuals should each be dismissed with prejudice from this cause because they are

entitled to qualified immunity from liability. The Supreme Court has held that government

officials have immunity from liability as long as their conduct does not violate a clearly

established right at the time of the official’s actions. See, e.g., Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982). Determining whether a government official has qualified immunity is a two

step process. See Saucier v. Katz, 533 U.S. 194, 200-01 (2001). First, a court must decide

whether the facts, taken in the light most favorable to the plaintiff, show that the official’s

conduct violated a constitutional right. Id. Second, the court must decide whether the right was

clearly established at the time of the official’s alleged misconduct. Id.

In order for there to be a violation of a clearly established right, it “must be sufficiently

clear such that a reasonable official would understand that what he is doing violates that

right.” Bakalis v. Golembeski, 35 F.3d 318, 323 (7th Cir. 1994). Therefore, public officials are

entitled to qualified immunity unless “it has been authoritatively decided that certain conduct is

forbidden.” Alliance to End Repression v. City of Chicago, 820 F.2d 873, 875 (7th Cir. 1987).

“This exacting standard ‘gives government officials breathing room to make reasonable but

mistaken judgments’ by ‘protect[ing] all but the plainly incompetent or those who knowingly

violate the law.’” City & Cty. of San Francisco, Calif. v. Sheehan, 135 S. Ct. 1765, 1774 (2015)

(citation omitted).

Courts should look to the particularized circumstances, not the general situation, when

considering qualified immunity defenses. Brosseau v. Haugen, 543 U.S. 194, 199 (2004). If the

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particular facts fall within the hazy border between proper and improper, then qualified

immunity should be applied. Saucier, 533 U.S. at 206.

In line with its broad interpretation of qualified immunity, the Supreme Court has

reversed a number of lower court decisions holding there was no immunity: See Sheehan, 135 S.

Ct. 1765; Plumhoff v. Rickard, 134 S. Ct. 2012 (2014); Ashcroft v. al-Kidd, 563 U.S. 731 (2011).

The Court did so because qualified immunity is important to “society as a whole,” and because

as “an immunity from suit,” qualified immunity “is effectively lost if a case is erroneously

permitted to go to trial.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). In these cases, the

Court has emphasized that “clearly established law” should not be defined “at a high level of

generality.” Ashcroft, 563 U.S. at 742. Instead, it must be “particularized” to the facts of the case.

Anderson v. Creighton, 483 U.S. 635, 640 (1987). Otherwise, “[p]laintiffs would be able to

convert the rule of qualified immunity…into a rule of virtually unqualified liability simply by

alleging violation of extremely abstract rights.” Id. at 639.

Qualified immunity exists here because no reasonable city council member would believe

it was a violation of anyone’s civil rights to comply with 70 ILCS 2605/26 and pass an

ordinance, at an open meeting, that increased the rate charged for delivering Lake Michigan

water based upon legislative findings about the costs incurred to deliver that water. Accordingly,

the individual Defendants are entitled to qualified immunity and should be dismissed from this

litigation with prejudice.

Conclusion

The facts of this case disclose nothing more than a dispute under Illinois statutes over the

price for the purchase of Lake Michigan water from Evanston by Skokie. There is nothing about

these facts which could or should find their way into federal court. This lawsuit is an

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unambiguous negotiation tactic intended to try and force a discount. Further proof of the true

motives of this lawsuit is found in the fact that each and every count in the Complaint is legally

deficient and that Skokie named individual Defendants it knew are immune from liability.

WHEREFORE, Defendants respectfully request that this Court dismiss Plaintiffs’

Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), and for such other relief that

this Court finds to be just in response to the tactics used.

Respectfully submitted,

_/s/ Derke J. Price ____________________

Derke J. Price, Attorney for Defendants

Derke J. Price (ARDC # 6198737)

Stewart H. Diamond (ARDC #0629650
Matthew T. DiCianni (ARDC # 6312661)
ANCEL, GLINK, DIAMOND, BUSH, DICIANNI & KRAFTHEFER, P.C.
140 S. Dearborn St. Suite 600
Chicago, IL 60603
312.782.7606
312.782.0943 Fax

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CERTIFICATE OF SERVICE

I hereby certify that on August 14, 2018, I electronically filed the foregoing

Memorandum of Law in Support of Defendants’ Rule 12(b)(6) Motion to Dismiss

Plaintiffs’ Complaint with the Clerk of the Court using the CM/ECF system, which will send

notification of such filing to:

Michael M. Lorge
James Gillan McCarthy
5127 Oakton
Skokie, IL 60077
mml@skokie.org
James.mccarthy@skokie.org

/s/ Derke J. Price

DERKE J. PRICE /ARDC # 6198737
One of the attorneys for Defendants
ANCEL, GLINK, DIAMOND, BUSH,
DICIANNI & KRAFTHEFER, P.C.
140 South Dearborn Street, Sixth Floor
Chicago, Illinois 60603
Telephone: (312) 782-7606
Facsimile: (312) 782-0943
E-Mail: dprice@ancelglink.com

4816-9891-7232, v. 2

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