Case: 1:18-cv-04289 Document #: 42 Filed: 10/02/18 Page 1 of 32 PageID #:385

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, )
)
v. )
) 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. )
)

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ RULE 12(B)(6) MOTION TO DISMISS

Michael M. Lorge (IBN 1981005) William J. McKenna (IBN 3124763)

James G. McCarthy Josephine J. Park (IBN 6328772)
Village of Skokie Foley & Lardner LLP
5127 Oakton Street 321 N. Clark Street, Suite 2800
Skokie, Illinois 60077 Chicago, IL 60654-5313
(847) 933-8270 (312) 832-4500

Attorneys for Village of Skokie, Elaine

Jacobson, Paul Pitalis, Robert Quane and
Georgia Nut Company

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TABLE OF CONTENTS

I. Introduction ....................................................................................................................... 1

II. Factual Background.......................................................................................................... 3

III. Procedural Background ................................................................................................... 6

IV. The Standing and Ripeness Doctrines Are Satisfied In This Case ............................... 8

A. Skokie and Its Citizens Have Standing ............................................................... 8

B. Skokie and Its Citizens’ Claims Based Upon the Constitution Are
Ripe......................................................................................................................... 9

V. Skokie and Its Citizens’ Rights to Access Lake Michigan Water is a

Fundamental Right Guaranteed by the Constitution .................................................. 10

VI. Alternatively, Skokie and its Citizens Have a Liberty and Property Interest
in Their Right to Lake Michigan Water Services ........................................................ 12

VII. Skokie and its Citizens Have Stated a Valid Claim that the Ordinance at
Issue Violates Constitutional Equal Protection and Due Process Provisions............ 13

A. Skokie successfully alleged an equal protection claim..................................... 13

B. Skokie successfully alleged a procedural due process claim ........................... 15

VIII. The 1983 Claims of the Individual Plaintiffs Have Been Properly Pled .................... 16

A. Skokie Individual Plaintiffs have a constitutionally protected interest

in water ................................................................................................................ 16

B. Skokie Individual Plaintiffs have an equal protection claim .......................... 17

C. Skokie Individual Plaintiffs have a substantive due process claim ................ 18

IX. Counts XIII and XIV State a Claim and Are Properly Brought in this Court
Under the Court’s Supplemental Jurisdiction ............................................................. 19

X. This Court Should Not Abstain ..................................................................................... 21

A. Younger abstention doctrine does not apply .................................................... 21

B. Colorado River abstention is not appropriate.................................................. 22

C. Wilton-Brillhart abstention is completely discretionary and this Court

should not exercise its discretion to abstain from deciding the federal
issues ..................................................................................................................... 23
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XI. Qualified Immunity Is Not Appropriately Determined On a Motion to

Dismiss ............................................................................................................................. 24

XII. Conclusion ....................................................................................................................... 26

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TABLE OF AUTHORITIES

Cases

Alvarado v. Litscher, 267 F.3d 648 (7th Cir. 2001) ...................................................................... 24

Arnold v. KJD Real Estate, LLC, 752 F.3d 700 (7th Cir. 2014) ................................................... 24

Atkins v. City of Chi., 631 F.3d 823 (7th Cir. 2011) ..................................................................... 11

Brunson v. Murray, 843 F.3d 698 (7th Cir. 2016) ........................................................................ 13

Cage v. Harper, No. 17-CV-07621, 2018 WL 4144624 (N.D. Ill. Aug. 30, 2018) ..................... 25

City of Chicago v. Town of Cicero, 210 Ill. 290 (1904) ............................................................... 20

Collins v. City of Harker Heights, Tex., 503 U.S. 115 (1992) ...................................................... 18

Crowley v. McKinney, 400 F.3d 965 (7th Cir. 2005).................................................................... 15

Davis v. Weir, 328 F. Supp. 317 (N.D. Ga. 1971) ........................................................................ 11

Donovan v. Cty. of Lake, No. 08-CV-3098, 2009 WL 10697255 (N.D. Ill. Feb. 5, 2009) ............ 9

Evans v. Portfolio Recovery Associates, LLC, 889 F.3d 337 (7th Cir. 2018)................................. 8

Freed v. J.P. Morgan Chase Bank, N.A., 756 F.3d 1013 (7th Cir. 2014)..................................... 22

Illinois Central Railroad v. State of Illinois, 146 U.S. 387 (1892) ........................................... 2, 13

In re City of Detroit, 841 F.3d 684 (6th Cir. 2016) ...................................................................... 11

Isby v. Brown, 856 F.3d 508 (7th Cir. 2017) ................................................................................ 15

Koger v. Guarino, 412 F. Supp. 1375 (E.D. Pa. 1976), aff'd, 549 F.2d 795 (3d Cir. 1977) ......... 17

Kurr v. Vill. of Buffalo Grove, 912 F.2d 467 (7th Cir. 1990) ....................................................... 11

Lamb v. Hamblin, 57 F.R.D. 58 (D. Minn. 1972)......................................................................... 11

Magnuson v. City of Hickory Hills, 933 F.2d 562 (7th Cir. 1991) ............................................... 11

Marusic Liquors, Inc. v. Daley, 55 F.3d 258 (7th Cir. 1995) ......................................................... 9

Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1 (1978) ................................. 11, 12, 13, 15

Mulholland v. Marion Cty. Election Bd., 746 F.3d 811 (7th Cir. 2014)....................................... 21

Nat'l Paint & Coatings Ass'n v. City of Chicago, 803 F. Supp. 135 (N.D. Ill. 1992)................... 10

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New Jersey v. New York, 283 U.S. 336 (1931) ............................................................................. 12

New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350 (1989) .............. 22

New York Cent. R. Co. v. Illinois Commerce Comm'n, 77 F. Supp. 520 (N.D. Ill. 1948) ............ 16

O’Neal v. City of Seattle, 66 F.3d 1064 (9th Cir. 1995) ............................................................... 17

R.R. Comm'n of California v. Pac. Gas & Elec. Co., 302 U.S. 388 (1938) ................................. 16

Scottsdale Ins. Co. v. Vill. of Dixmoor, No. 13 CV 6392, 2014 WL 1379888 (N.D. Ill. Apr. 8,
2014) ........................................................................................................................................... 9

Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) .............................................................................. 8

Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69 (2013) .................................................................. 21

State of Wisconsin v. State of Illinois, 278 U.S. 367 (1929) ........................................................... 2

Sterling v. Vill. Of Maywood, 579 F.2d 1350 (7th Cir. 1978) ...................................................... 13

United Gas Pub. Serv. Co. v. State of Texas, 303 U.S. 123 (1938) .............................................. 16

Vill. of Niles v. City of Chicago, 82 Ill. App. 3d 60 (1980) .................................................... 20, 21

Vill. of Willowbrook v. Olech, 528 U.S. 562 (2000) ..................................................................... 14

Warner v. Chauffeurs, Teamsters & Helpers Local Union No. 414, No. 1:16-CV-367-TLS, 2017
WL 1021311 (N.D. Ind. Mar. 16, 2017) ................................................................................... 23

Washington v. Glucksberg, 521 U.S. 702 (1997) ......................................................................... 18

Whitaker v. Young, No. 99 CV 8441, 2001 WL 138926 (N.D. Ill. Feb. 16, 2001) ...................... 20

Wisconsin v. Illinois, 388 U.S. 426 (1967) ..................................................................................... 2

Younger v. Harris, 401 U.S. 37 (1971) ......................................................................................... 21

Statutes

28 U.S.C. § 1367(a) ...................................................................................................................... 20

615 ILCS 50/1 ........................................................................................................................... 3, 13

70 ILCS 2605/26 ........................................................................................... 3, 5, 13, 15, 19, 20, 21

Rules

Fed. R. App. Pro. 32.1(a)(ii) ......................................................................................................... 11

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Plaintiffs, Elaine Jacobson, Paul Pitalis, Robert Quane, Georgia Nut Company

(hereinafter “Skokie Individual Plaintiffs”), and the Village of Skokie (hereinafter “Skokie”), a

Municipal Corporation, (hereinafter collectively “Skokie Plaintiffs”) in response to Defendants’

Rule 12(b)(6) Motion to Dismiss, state as follows:

I. Introduction
Skokie has come to Federal Court for relief, not to avoid the Illinois Circuit Court, but to

find a resolution for disparate and unfair water rates set by municipalities, which, through the

good fortune of geography, control the access to water supply.1 (Am. Compl. ¶ 1, ECF No. 18.)

Numerous municipalities, starving for revenue and running enormous budget deficits, have

turned water sales into a monopolistic profit center.2 Skokie’s Complaint before this Court is

neither contrived nor without federal standing and in fact, demonstrates that the issues at bar are

far more than a simple contract dispute between municipalities. Rather, it is grounded in

principles of fairness, due process and equitable rights for Illinois municipalities and their

residents who are subject to inflated and invalid water rates of unregulated municipal water

sellers.

Skokie turns to this Court because unlike most states, Illinois has no state water

commission to set municipal water rates. The resulting inequity is clearly evident by the fact that

private water sellers in Illinois must demonstrate to the Illinois Commerce Commission that their

water rates serve the public interest and conform to recognized rate structures, whereas

municipal water sellers impose rates by unchecked and unjustified fiat, directly impacting the

fundamental right to water, inherent in federal law. This case seeks constraints over these

1
See Ted Gregory et al., Same Lake, Unequal Rates, Chicago Tribune (Oct. 25, 2017),
https://graphics.chicagotribune.com/news/lake-michigan-drinking-water-rates/index.html.
2
See id; Bill Smith, City Budget Deficit Forecast Rises to $7.5 million, Evanston Now,
https://evanstonnow.com/story/government/bill-smith/city-budget/2018-09-14/80474/city-budget-deficit-forecast-
rises-to-75.
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alarming circumstances, whereby municipalities selling water, charge disparate and

discriminatory rates to various municipal water customers without a cognizable difference in the

water source, processing or delivery of the federally mandated water property rights.

The rights of Illinois residents to the water from Lake Michigan are subject to the powers

of the United States Congress to regulate commerce, and the rights of Illinois to draw the waters

of Lake Michigan are limited as a matter of federal law.3 (Am. Compl. ¶ 26.) The waters of

Lake Michigan are the property of the United States which Illinois under Federal law, holds in

trust for the use and enjoyment of all the People of Illinois without limitation or favoritism.4 (Id.

¶ 27.) Imbedded in these federal mandates are the fair and equal treatment of all municipalities

and their individual residents to receive the fundamental property right to water. The City of

Evanston (hereinafter “Evanston”) permanently and directly harmed the rights to water for

Skokie and its residents by inflating water rates by more than 264%-307%, then forcing these

unsubstantiated rates by ordinances passed in Executive Session.

Contrary to Evanston’s efforts to recast the last two years of negotiations between Skokie

and Evanston, the facts and documents in this case will demonstrate that Skokie, orally and in

writing, requested the exact same method of water delivery as other Evanston water customers,

including disconnecting its integrated water systems in favor of a single water “dump and pump”

into a Skokie pumping station. Evanston refused to negotiate a rate for this method of delivery

which it granted to other users.

Plaintiffs are entitled to equal access to the protected right to water and unilateral

demands for erratic, disparate and unjustified water rates, flagrantly interfering with this

protected right. Evanston’s behavior cries out for Federal Court protection, not to limit water

3
State of Wisconsin v. State of Illinois, 278 U.S. 367 (1929); Wisconsin v. Illinois, 388 U.S. 426 (1967), as modified
by 449 U.S. 48 (1980).
4
Illinois Central Railroad v. State of Illinois, 146 U.S. 387, 452 (1892).
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rates, but to require equal application of consistent water rate calculations to all customers. The

record at trial will demonstrate that Evanston’s elected officials sought to impose a punitive

water rate on Skokie far in excess of any of its customers. Further, the facts will reveal that

Evanston set its rates without meaningful consultation with any recognized water rate expert and

in a manner that national water rate experts deem far outside accepted practices. Only this

Federal Court can bring these practices and those of other Illinois municipal water sellers, in line

to create fairness and equal access under the rights protected by federal law.

II. Factual Background

Due to its fortuitous location, the City of Evanston draws water from Lake Michigan,

treats it, and then sells it to its residents and other local municipalities. (Id. ¶ 23.) As one of the

only municipalities near Skokie with both the access and infrastructure to deliver water to

Skokie, Evanston maintains a unique and profound market power to arbitrarily set and raise

wholesale water rates to Skokie. Evanston’s practice essentially operates as a monopoly. (Id. ¶

25.)

Pursuant to 615 ILCS 50/1, et. al., Skokie has been granted an allocation of water by

Illinois for the use and benefit of its residents and businesses in Skokie, including Skokie

Plaintiffs. (Id. ¶ 28.) Furthermore, pursuant to 70 ILCS 2605/26, Evanston is required to sell

Lake Michigan water for a reasonable, non-discriminatory price, no greater than it charges

customers within its limits through meters for like large quantities.5 (Id. ¶ 29.)

Evanston contracted to sell water to the Villages of Arlington Heights, Buffalo Grove,

Des Plaines, Mount Prospect and Wheeling (hereinafter “NWC Municipalities”) for $.67/1,000

gallons of water. (Id. ¶¶ 30, 50.) Evanston contracted to sell water to Niles and Morton Grove

for $.78/1,000 gallons of water. (Id. ¶¶ 31, 50.) During negotiations with Evanston, Skokie

5
70 ILCS 2605/26.
3
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offered to switch from an integrated and interdependent water pipe to a “dump and pump” water

system at Skokie’s cost. (Id. ¶ 44.) This type of water system would be identical to the water

system used by Niles and Morton Grove. (Id.) Evanston rebuffed Skokie’s offer. Moreover,

numerous members of Evanston’s negotiating team made statements that Evanston was

determined to recoup lost revenue as a matter of retribution, regardless of its other wholesale

water rate contracts. (Id. ¶ 41.) Similarly, prior to and during the April 2017 municipal election

in Evanston, several elected officials and candidates expressed their intention to compel Skokie

to pay significantly more for water due to perceived previous favorable water rates. (Id. ¶ 45.)

Such discriminatory statements were outside the scope of elected officials governmental duties

and authorities. (Id.)

Despite the fact that the proposed use, method of delivery and quantities of water

purchased by Niles, Morton Grove and the NWC were the same as for Skokie, Evanston

imposed a water rate ordinance on Skokie in the amount of $2.06/1,000 gallons of water. (Id. ¶¶

48, 50.) This rate is over 2 ½ times more than the rate negotiated with Niles and Morton Grove

and more than $.50 higher than the previous water rate of $1.53/1000 gallons of water that

Evanston demanded of Skokie during negotiations in May, 2017. (Id.) Furthermore, in enacting

this ordinance, Evanston violated procedural due process and deprived Skokie Plaintiffs of any

meaningful opportunity to be heard. (Id. ¶ 49.)

Evanston’s water rate ordinance causes Skokie Plaintiffs to be treated differently from

similarly situated water users in the NWC Municipalities, Niles and Morton Grove without any

rational basis. Simply put, Evanston’s water rate ordinance for Skokie is oppressive, arbitrary,

discriminatory, contrary to Illinois law and violative of Skokie Plaintiff’s substantive and

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procedural due process rights as well as Skokie Plaintiffs’ rights to equal protection under federal

law. (Id. ¶¶ 51, 52.)

Evanston argues facts outside the Amended Complaint when it falsely alleges in its

Memorandum of Law that Skokie, “demands that Evanston deliver water to Skokie’s system at

three separate locations at full pressure (instead of just one location like other municipalities) but

Skokie doesn’t want to pay for that premium service.” (Defs.’ Mem. Supp. Mot. 1, ECF No. 41.)

However, as alleged in the Amended Complaint, Mr. John Lockerby, Skokie Village Manager,

sent a letter to Evanston memorializing Skokie’s desire to switch from the three-point integrated

water pipe system to a “dump and pump” system similar to Niles and Morton Grove. (Am.

Compl. ¶ 44.)

On August 21, 2018, counsel for Evanston argued that Skokie’s water rate was based on

its three point system of contact, in contrast to Nile’s and Morton Grove’s “dump and pump”

system. However, Corporation Counsel for Skokie, referenced the letter written by Mr.

Lockerby regarding Skokie’s willingness to switch to a “dump and pump” system. (Tr. Aug. 21,

2018, 13-14, ECF No. 39.) Evanston’s statement directly contradicts the Amended Complaint,

and should be disregarded.

Additionally, Evanston distorts the plain reading of Illinois Statutes. 70 ILCS 2605/26

states that when water rates are not agreed upon by the parties, “such rates shall be fixed and

determined by the Circuit Court of Cook County.” Evanston, however, did not petition the

Circuit Court to “fix and determine” the appropriate water rate. Rather, Evanston sought a

declaratory judgment from the Circuit Court to declare that the rate unilaterally established by

Evanston was reasonable and enforceable. Ex. A, Evanston’s Complaint. Moreover, Evanston

improperly passed its ordinance forcing the arbitrary water rate on September 25, 2017 and filed

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its lawsuit the next morning. (Defs.’ Mem. Ex. A); Ex. A. No notice. No discussion. Just

naked, discriminatory, oppressive, punitive conduct on the part of Evanston.

Lastly, Evanston’s claim that it followed procedural due process when it adopted its

water rate ordinance is false. Pursuant to the Rules and Organization of the City Council of the

City of Evanston, no ordinance may be adopted by the Council at the same meeting at which it is

introduced unless, “the rules are suspended by a unanimous vote of the Aldermen.” However,

the September 25, 2017 Evanston City Council Meeting documents state that the ordinance to

establish a new wholesale water rate for Skokie was approved on Consent Agenda without a

separate motion and recorded vote for a suspension of the rules for Introduction and Action. Ex.

B, City of Evanston City Council Regular Meeting, Minutes. Accordingly, Evanston violated its

own procedural rules.

III. Procedural Background

On February 3, 1997, Skokie entered into a twenty year contract with the City of

Evanston regarding the purchase of water from Evanston. (Defs.’ Mem. Ex. B.) The contract

ran from March 1, 1997 through February 28, 2017. (Id.) On or about February 2017, officials

from Skokie and the City of Evanston met in an attempt to renegotiate another twenty year water

contract. (Am. Compl. ¶ 35.) During this timeframe, Evanston officials also met with

representatives from Niles and Morton Grove regarding water contracts for their municipalities.

(Id. ¶ 36.) Blindsiding Skokie, Evanston broke off any and all negotiations with Skokie during

its negotiation with Niles and Morton Grove. (Id. ¶ 38.) Eventually, Evanston entered into a

wholesale water rate contract with Niles and Morton Grove to sell water to the municipalities at a

rate of $.78/1,000 gallons of water. (Id. ¶ 50.)

Subsequently, Evanston restarted negotiations with Skokie on or about March 2017. (Id.

¶ 39.) In July 2017, Evanston abruptly discontinued any and all negotiations with Skokie. (Id. ¶
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40.) On September 25, 2017, Evanston introduced and adopted an Ordinance establishing a new

wholesale water rate for Skokie. (Defs.’ Mem. Ex. A.) Evanston’s Ordinance set the water rate

provided to Skokie at $2.06/1,000 gallons of water. (Am. Compl. ¶ 50.) On the following

morning, September 26, 2017, Evanston filed a declaratory judgment against Skokie to enforce

the ordinance which it improperly passed the night before. See Ex. A. Additionally, rather than

petition the Court to set a reasonable water rate, Evanston only asked the Court to declare that its

rate was reasonable. On January 16, 2018, Evanston filed an Amended Complaint. Ex. C,

Evanston’s Amended Complaint.

On February 13, 2018, Skokie filed its Motion to Strike and Dismiss Evanston’s

Amended Complaint. Ex. D, Skokie’s Motion to Strike. On April 5, 2018, Evanston filed its

Response to Skokie’s 5/2-615 Motion to Strike and Dismiss its Amended Complaint. Ex. E,

Evanston’s Response. On May 16, 2018, Skokie filed its Reply in Support of its Motion to

Strike Evanston’s Amended Complaint. Ex. F, Skokie’s Reply.

On June 20, 2018, Skokie Plaintiffs filed this Federal Complaint against the City of

Evanston and the Evanston Defendants. (Compl., ECF No. 1.) On July 9, 2018, Skokie filed a

Motion to Stay All Proceedings in Chancery Court. Ex. G, Skokie’s Motion to Stay. On July

12, 2018, the Chancery Court entered and continued Skokie’s Motion to Stay All Proceedings

until September 13, 2018. Ex. H, July 12, 2018 Order. Furthermore, the Court entered and

continued Skokie’s Motion to Strike and Dismiss Evanston’s First Amended Complaint to that

date as well. Ex. H. On August 9, 2018, Skokie Plaintiffs filed its Amended Complaint in this

Court. (Am. Compl.)

On September 13, 2018, the Chancery Court again entered and continued Skokie’s

Motion to Stay and Skokie’s Motion to Strike and Dismiss Evanston’s First Amended Complaint

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until December 17, 2018. Ex. I, September 13, 2018 Order. The Chancery Court has not made

any substantive ruling and for all practical purposes, the Chancery Court proceeding has been

stayed.

IV. The Standing and Ripeness Doctrines Are Satisfied In This Case
A. Skokie and Its Citizens Have Standing
To establish standing, a 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). Accord,

Evans v. Portfolio Recovery Associates, LLC, 889 F.3d 337, 344 (7th Cir. 2018). Satisfying the

injury in fact element requires the party seeking to invoke federal jurisdiction to, in turn, “show

that he or she suffered ‘an invasion of a legally protected interest.’” Spokeo, 136 S. Ct. at 1548

(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). The party must also show

that the injury is both “concrete and particularized.” Id. Finally, the party must show that his or

her injury is “actual or imminent, not conjectural or hypothetical.” Id.

Evanston argues that Skokie does not have standing because “Plaintiffs have not alleged

that they suffered an injury in fact traceable to Evanston’s actions—nor can they.” (Defs.’ Mem.

6.) Contrary to Evanston’s argument, Skokie has properly alleged that Evanston, through the

adoption of the Punitive Rate Ordinance, violated Skokie’s rights to reasonable and non-

discriminatory water rates under federal and Illinois law. The Evanston City Council enacted the

Punitive Rate Ordinance on September 25, 2017, and the new water rate became effective as of

October 1, 2017. (Id. Ex. A.) Skokie’s injuries are directly traceable Evanston’s unilateral

imposition of the new water rates through the Punitive Rate Ordinance.

Skokie Individual Plaintiffs likewise have sufficiently alleged that they suffered

unreasonable and discriminatory water rates as a result of Evanston’s adoption of the Punitive

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Rate Ordinance without adequate due process and equal protection. Though Evanston imposed

the new water rates on the Village of Skokie, there is no question that the rate increase from

$1.0797 per 1,000 gallons to $2.06 per 1,000 gallons will be immediately passed onto the Skokie

Individual Plaintiffs. Evanston’s punitive actions have compromised Skokie Individual

Plaintiffs’ access to and use of safe water from Lake Michigan. These injuries arising from

Evanston’s actions will be redressed by a favorable decision by this Court.

B. Skokie and Its Citizens’ Claims Based Upon the Constitution Are Ripe
Skokie and its citizens’ claims are also ripe for decision by this Court. “A claim is unripe

when critical elements are contingent or unknown.” Marusic Liquors, Inc. v. Daley, 55 F.3d

258, 260 (7th Cir. 1995). In Marusic Liquors, a store owner brought a § 1983 claim challenging

Chicago’s moratorium on liquor licenses targeting only specific neighborhoods. Id. at 260. The

Seventh Circuit found that the store owner’s claim was ripe for decision because “[t]he terms of

the law are clear, their application straightforward,” and “does not afford licensees any way to

avoid (or to be compensated for) its application.” Id. at 261.

Like the ordinance in Marusic Liquors, Evanston’s Punitive Rate Ordinance is already in

effect. The terms of the Punitive Rate Ordinance are clear, straightforward, and apply only to

Skokie. The Punitive Rate Ordinance also embodies Evanston’s conclusive decision regarding

the rate for Lake Michigan water provided to Skokie. See id.; see also Donovan v. Cty. of Lake,

No. 08-CV-3098, 2009 WL 10697255, at *4 (N.D. Ill. Feb. 5, 2009) (finding that “plaintiffs’

claim is not yet ripe because the surcharge of which plaintiffs complain has yet to be imposed”).

Evanston’s Punitive Rate Ordinance has already impacted Skokie and its residents,

including a significant increase in water rates. See Scottsdale Ins. Co. v. Vill. of Dixmoor, No. 13

CV 6392, 2014 WL 1379888, at *2 (N.D. Ill. Apr. 8, 2014) (“For a case or controversy to be ripe

for decision, the injury in question must be ‘actual or imminent, not conjectural or
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hypothetical.’”). Evanston’s imposition of the rate increase will be immediately passed onto the

Skokie Individual Plaintiffs. In addition, Skokie has received calls from businesses seeking

verification of the water rate increase as they consider renewing expiring leases. Moreover,

Evanston has included a count in its state court Amended Complaint under the Local

Government Prompt Payment Act, 50 ILCS 505/2, seeking to charge Skokie a penalty of 1% per

month until the bill is paid. Ex. C.

Finally, Skokie’s claim relating to Evanston’s Punitive Ordinance is ripe because Skokie

contends that the ordinance is facially unconstitutional. Nat'l Paint & Coatings Ass'n v. City of

Chicago, 803 F. Supp. 135, 141 (N.D. Ill. 1992) (finding plaintiffs’ claim seeking declaratory

judgment of city ordinance ripe because plaintiffs are alleging that the regulation is

unconstitutional on its face). The Punitive Rate Ordinance singles out Skokie, forcing Skokie to

pay $2.06/1,000 gallons for Lake Michigan water, which is 264%-307% higher than the amount

Evanston charges to similar Lake Michigan water users in adjacent and neighboring

communities. (Am. Compl. ¶¶ 1, 50.) Skokie has alleged that Evanston’s unilateral imposition

of the $2.06/1,000 gallons rate through the Punitive Rate Ordinance is arbitrary and oppressive

and violates Skokie and Skokie Individual Plaintiffs’ due process and equal protection rights.

V. Skokie and Its Citizens’ Rights to Access Lake Michigan Water is a Fundamental
Right Guaranteed by the Constitution
Under Illinois and federal law, all Illinois citizens are entitled to fair and equal access to

Lake Michigan water. Illinois’s right to access Lake Michigan water is subject to the powers of

Congress to regulate commerce. (Id. ¶ 26.) Illinois holds Lake Michigan water in trust for the

use and enjoyment of all Illinois citizens without limitation or favoritism. (Id. ¶ 27.)

Evanston argues that Skokie and its citizens do not have a federally protected

fundamental right to water. Evanston relies on two cases, Kurr v. Vill. of Buffalo Grove, 912

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F.2d 467 (7th Cir. 1990)6 and Magnuson v. City of Hickory Hills, 933 F.2d 562, 567 (7th Cir.

1991), finding that access to municipal water services is not a fundamental right. (Defs.’ Mem.

5.) Skokie’s Complaint, however, raises far more serious issues than termination of municipal

utility services and rises above a contract dispute. Evanston’s oppressive and discriminatory

conduct is more insidious because it inflicts a measurable hardship on the life and business of

Skokie residents concerning their fair and equal access to Lake Michigan water.

Access to water implicates a fundamental right to life because a minimum amount of

water is essential for life. Complete withholding of water can amount to deprivation of life.

Notably, the Seventh Circuit found that denying water to prisoners can amount to a

Constitutional violation. Atkins v. City of Chi., 631 F.3d 823, 830 (7th Cir. 2011) (finding

deprivation of water may support a “claim of constitutional magnitude” because “a thirsty person

deprived of water would last only a matter of days.”). But see In re City of Detroit, 841 F.3d

684, 700 (6th Cir. 2016) (finding there is no fundamental right to water service).

Many courts have similarly recognized water as a necessity of life. Memphis Light, Gas

& Water Div. v. Craft, 436 U.S. 1, 18 (1978) (“Utility service is a necessity of modern life;

indeed, the discontinuance of water or heating for even short periods of time may threaten health

and safety.”); Davis v. Weir, 328 F. Supp. 317, 321 (N.D. Ga. 1971) (“There can be no serious

doubt that water is an absolute necessity of life.”). One district court even noted that

“[t]ermination of water service inflicts hardships on the consumer that transcend the deprivation

of other protected interests.” Lamb v. Hamblin, 57 F.R.D. 58, 61 (D. Minn. 1972).

In the context of a dispute over New York’s plan to divert the waters of the Delaware

River to increase the water supply available to the citizens of New York, Justice Holmes

6
Kurr is an unreported opinion decided prior to January 1, 2007, and as such, should not be relied upon as
precedent. Fed. R. App. Pro. 32.1(a)(ii).
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emphasized the fundamental importance of access to drinking water and the need for equity in

allocating water.

A river is more than an amenity, it is a treasure. It offers a necessity of life that

must be rationed among those who have power over it. New York has the
physical power to cut off all the water within its jurisdiction. But clearly the
exercise of such a power to the destruction of the interest of lower States could
not be tolerated. And on the other hand equally little could New Jersey be
permitted to require New York to give up its power altogether in order that the
river might come down to it undiminished. Both States have real and substantial
interests in the river that must be reconciled as best they may.

New Jersey v. New York, 283 U.S. 336, 342-43 (1931). Applying Justice Holmes’s settled rule in

this Supreme Court case, Evanston’s unreasonable, arbitrary and discriminatory water rates

imposed on Skokie have the intent and effect of cutting off water access to Skokie and its

residents and is destructive of the interest of Skokie’s economic survival. Therefore, the Court

should find that access to water is a constitutionally protected fundamental right.

VI. Alternatively, Skokie and its Citizens Have a Liberty and Property Interest in Their
Right to Lake Michigan Water Services
The Supreme Court has held that customers of a municipal water provider have a

protected property interest in continued water services in Craft, 436 U.S. at 12 (holding that

water customers of a municipal water service can “assert a ‘legitimate claim of entitlement’

within the protection of the Due Process Clause.”). As the Court noted in Craft with respect to

whether a right to continued water service enjoyed the stature of “property” within the meaning

of the Due Process Clause:

Although the underlying substantive interest is created by “an independent source

such as state law,” federal constitutional law determines whether that interest
rises to the level of a “legitimate claim of entitlement” protected by the Due
Process Clause.

436 U.S. at 6 (emphasis added). In Craft, the Supreme Court stated that a customer of a

municipal utility company had a protectable property interest in continued water service and that

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the utility failed to provide adequate due process of law. 436 U.S. at 12, 19-22; see also Kurr,

912 F.2d 467, at *5. (“assum[ing] … that [a customer] has a protected property interest in

sanitation services and a supply of portable water.”).

Here, both state and federal law make Skokie and its citizens’ legitimate claim of

entitlement clear. Pursuant to federal law, the waters of Lake Michigan belong to the State of

Illinois, to be held in trust for its citizens. Illinois Central Railroad v. State of Illinois, 146 U.S.

387, 452 (1892). In turn, the State has (a) granted Skokie an allocation of such water (615 ILCS

50/1) and (b) required Evanston to sell Lake Michigan water to Skokie for a reasonable non-

discriminatory price (70 ILCS 2605/26) not to exceed what it charges “consumers within its

limits” for “like large quantities.” These provisions of law define a property interest in Lake

Michigan water cognizable under the Due Process Clause.

Evanston's reliance on Sterling v. Vill. Of Maywood, 579 F.2d 1350 (7th Cir. 1978) is

without merit. Sterling involved a termination of a tenant’s water services after the landlord

unsuccessfully attempted to evict the tenant. Id. at 1351-52. The Seventh Circuit found that

Craft’s holding did not apply, because Sterling was not a customer of the municipal water

company. Id. at 1353 n.7. Unlike Sterling, Skokie and its citizens are customers of Evanston

and seek access to Lake Michigan water services at reasonable and non-discriminatory rates.

VII. Skokie and its Citizens Have Stated a Valid Claim that the Ordinance at Issue
Violates Constitutional Equal Protection and Due Process Provisions
A. Skokie successfully alleged an equal protection claim
The Equal Protection Clause not only prohibits violations of fundamental rights or

discrimination against members of a suspect class, but also guards against “‘class-of-one’

discrimination in which a government arbitrarily and irrationally singles out one person for poor

treatment.” Brunson v. Murray, 843 F.3d 698, 705 (7th Cir. 2016) (finding sufficient evidence

that there was no rational and legitimate basis for the mayor to single out plaintiff for disparate
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treatment). A class-of-one claim requires that (1) a plaintiff received worse treatment than

similarly situated individuals; and (2) there is no rational basis for the disparate treatment. Vill.

of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).

Skokie Plaintiffs have alleged that Evanston singled out Skokie Plaintiffs and imposed an

arbitrary and irrational water rate, which is 264%-307% higher than the rate Evanston negotiated

with NWC Municipalities, Niles, and Morton Grove. (Am. Compl. ¶¶ 48, 50, 65.) See Olech,

528 U.S. at 565 (finding that homeowners stated a class-of-one equal protection claim by

alleging that village required a 33-foot easement for plaintiff, while it only required a 15-foot

easement from similarly situated homeowners). Niles, Morton Grove, and the NWC

Municipalities are similarly situated municipalities without direct access to Lake Michigan water

and with similar proposed use, method of delivery, and quantities of water as Skokie. (Am.

Compl. ¶ 48.) Skokie has alleged that Evanston isolated Skokie from rate negotiations because it

intended to charge Skokie an arbitrarily higher wholesale rate than it charged similarly situated

neighboring municipalities in part to remedy what Evanston viewed as past favorable treatment

and also to address Evanston’s expanding budget deficit. (Id. ¶ 37.) Evanston subjected Skokie

to discriminatory treatment by unilaterally imposing a significantly higher water rate on Skokie

than other similarly situated municipalities. (Id. ¶ 48.)

Furthermore, Evanston does not have a legitimate state interest in singling out Skokie to

impose an arbitrary and excessive new water rate. Evanston attempts to justify its discriminatory

treatment of Skokie by citing, as reasons for the increased rate, the integration of Skokie’s water

system into Evanston’s and the three points of connection. (Defs.’ Mem. Ex. A.) Evanston

conveniently ignores Skokie’s proposal to switch to a dump-and-pump system and to construct a

new dump-and-pump system at Skokie’s cost. (Am. Compl. ¶ 44.) Evanston’s true motive in

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imposing an arbitrary and excessive water rate is to punish Skokie for perceived favorable

wholesale water rates through prior agreements. (Id. ¶¶ 41, 45.) Skokie sufficiently stated a

claim that Evanston singled out Skokie because of Evanston and the Individual Defendants’

personal hostility against Skokie for its perceived favorable water rates in the past. See Crowley

v. McKinney, 400 F.3d 965, 972 (7th Cir. 2005) (parent stated a class-of-one equal protection

claim against principal by alleging that plaintiff was singled out for adverse treatment because of

principal’s personal hostility towards plaintiff). Moreover, Evanston’s attempt to charge an

excessive water rate to Skokie is not rationally related to any legitimate governmental interest to

be served under the requirements of 70 ILCS 2605/26 that Evanston sell Skokie Lake Michigan

water at a reasonable and non-discriminatory rate. It only serves Evanston’s irrational and

arbitrary interest in earning back revenue it perceived it had lost under earlier contracts or to

close the gap in Evanston’s growing 7.5 million dollar municipal deficit.

B. Skokie successfully alleged a procedural due process claim

“An elementary and fundamental requirement of due process in any proceeding which is

to be accorded finality is 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.” Craft, 436 U.S. at 13 (1978). To establish a procedural due process claim, Skokie

must show (1) it was deprived of a constitutionally protected interest, and (2) Evanston did not

afford adequate process due under the circumstances. Isby v. Brown, 856 F.3d 508, 524 (7th Cir.

2017). Skokie has sufficiently alleged both.

As established earlier, Skokie has a protectable property interest in Lake Michigan water

services. See Craft, 436 U.S. at 12; Section VI. Furthermore, Evanston enacted the Punitive

Rate Ordinance without any meaningful opportunity for Skokie or the Individual Plaintiffs to be

heard prior to the adoption. On the evening of September 25, 2017, Evanston introduced and
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adopted the Punitive Rate Ordinance at the same meeting, in violation of its own procedural rules

and without meaningful notice to Skokie Plaintiffs. The next day it sued Skokie in the Circuit

Court seeking a declaration that its late night ordinance was a valid exercise of governmental

power. Craft, 436 U.S. at 19 (“Ordinarily, due process of law requires an opportunity for ‘some

kind of hearing’ prior to the deprivation of a significant property interest.”). If permitted to

litigate the Amended Complaint Skokie will, through document requests and deposition, further

establish the facts concerning the intentionally discriminating and arbitrary actions of the

Individual Defendants. Skokie Plaintiffs must be granted this opportunity.

Evanston relies on three cases involving a procedural due process claim challenging a

proposal to increase a utility rate. See R.R. Comm'n of California v. Pac. Gas & Elec. Co., 302

U.S. 388 (1938); 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). In each of these

three cases, plaintiffs participated in a full hearing and had the opportunity to present evidence

and arguments before the commission setting the rate. See e.g., New York Cent. R. Co., 77 F.

Supp. at 522-23 (holding that commission’s order did not violate plaintiff’s due process rights

because plaintiff was afforded due notice of the hearing, it was represented by counsel, and had a

full opportunity to produce and cross-examine witnesses). In contrast, Skokie and its citizens

were deprived of any notice of the hearing or an opportunity to present their proposals or

objections at the Evanston City Council. Therefore, Skokie Plaintiffs did not receive adequate

due process.

VIII. The 1983 Claims of the Individual Plaintiffs Have Been Properly Pled
A. Skokie Individual Plaintiffs have a constitutionally protected interest in
water
Skokie Individual Plaintiffs have a constitutionally protected property right to Lake

Michigan water services. Unlike the tenants in Sterling, the Skokie Individual Plaintiffs are
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valid, paying customers for the Lake Michigan water services Skokie receives from Evanston.

The Village of Skokie negotiates the water rate on behalf of its residents and businesses, whose

water rates are entirely dependent on the wholesale rate Skokie obtains from Evanston.

Therefore, Skokie Individual Plaintiffs are essentially Evanston’s water customers.

Furthermore, courts have recognized a property interest, where express contractual

privity does not exist between a user and a utility provider. See e.g., Koger v. Guarino, 412 F.

Supp. 1375, 1386 (E.D. Pa. 1976), aff'd, 549 F.2d 795 (3d Cir. 1977) (holding that “a water user

has a legitimate claim of entitlement to continued water service which is a property interest to

which the Due Process Clause of the Fourteenth Amendment applies.”) (emphasis added). As

residents and business owners who depend on safe public water supply at a reasonable rate,

Skokie Individual Plaintiffs have a property interest in Lake Michigan water services.

B. Skokie Individual Plaintiffs have an equal protection claim

Skokie Individual Plaintiffs have also sufficiently alleged their equal protection claim.

As discussed above, Evanston has singled out Skokie in imposing an arbitrary and irrational

water rate. Additionally, Skokie Individual Plaintiffs have alleged that they suffered disparate

treatment due to the perceived favorable rate Skokie residents received under previous negotiated

agreements.

Courts have held that refusing water service to a new tenant based on the debt of an

unrelated third party violates equal protection under rational basis review. See Sterling, 579 F.2d

at 1355; O’Neal v. City of Seattle, 66 F.3d 1064, 1068 (9th Cir. 1995). In Sterling, the Seventh

Circuit upheld the plaintiff’s equal protection claim, which alleged disparate treatment in access

to water services based on the debt of an unrelated third party. 579 F.2d at 1355. The court

determined that discrimination occurred based on classification of utility service applicants into

two categories: “applicants whose contemplated service address is encumbered with pre-existing
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debt (for which they are not liable) and applicants whose residence lacks the stigma of such

charges.” Id. Similarly, Skokie Individual Plaintiffs contend that Evanston is discriminating

based on two categories of water customers: municipal customers who had favorable water rates

through prior agreements with Evanston which Evanston now seeks to “claw back” and new

customers who lack such stigma. (Am. Compl. ¶ 41.)

The Seventh Circuit further concluded that the classification based on the unpaid debt of

a third party was not rationally related to the legitimate governmental purpose of collecting

unpaid water bills. Sterling, 579 F.2d at 1355; see also O’Neal, 66 F.3d at 1068 (refusing a new

tenant’s water service based on the debt of an unrelated prior tenant is illogical and violates the

new tenant’s equal protection rights). The O’Neal court found that refusing service to

unobligated new tenants is “not rationally related to the City’s interest in collecting debts for past

water usage.” 66 F.3d at 1068. Similarly, imposing an arbitrarily high water rate on Skokie

Individual Plaintiffs to account for the perceived favorable rates Skokie residents have enjoyed

in the past under duly negotiated contracts is not rationally related to any legitimate government

purpose.

C. Skokie Individual Plaintiffs have a substantive due process claim

Substantive due process “provides heightened protection against government interference

with certain fundamental rights and liberty interests.” Washington v. Glucksberg, 521 U.S. 702,

720 (1997). Substantive due process also “protects individual liberty against certain government

actions regardless of the fairness of the procedures used to implement them.” Collins v. City of

Harker Heights, Tex., 503 U.S. 115, 125 (1992). As established earlier, water is an absolute

necessity in life and is required as a fundamental right to life. Craft, 436 U.S. at 18 (1978);

Atkins, 631 F.3d at 830. Because Evanston’s actions infringes on a fundamental right,

Evanston’s action must be narrowly tailored to serve a compelling state interest. Washington,
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521 U.S. at 721. Evanston’s arbitrary and discriminatory rate setting practice does not serve any

compelling state interest and fails to satisfy its mandate under 70 ILCS 2605/26 to sell Lake

Michigan water at a reasonable and non-discriminatory rate.

Even if the Court finds that Individual Plaintiffs only have a property right, not a

fundamental right to Lake Michigan water, Evanston’s actions must still be rationally related to

legitimate government interests. Id. at 728. Evanston claims the arbitrarily excessive price it

imposed on Skokie accounts for the “premium service” Skokie requires to receive pressurized

water at three delivery points. (Defs.’ Mem. 9.) This is simply not true. In fact, Skokie

confirmed in a letter to Evanston that it does not require three-point delivery and that intends to

switch to a dump-and-pump system at Skokie’s cost. (Am. Compl. ¶ 44). Therefore, Evanston’s

true motive to earn back the revenue it perceived it had lost to Skokie is not related to any

legitimate state interest and fails to satisfy its duty under 70 ILCS 2605/26 to sell Lake Michigan

water at a reasonable and non-discriminatory rate.

IX. Counts XIII and XIV State a Claim and Are Properly Brought in this Court Under
the Court’s Supplemental Jurisdiction
Under 28 U.S.C. § 1367(a), federal district courts have supplemental jurisdiction over

“all other claims that are so related to claims in the action within such original jurisdiction that

they form part of the same case or controversy under Article III of the Constitution.” Counts

XIII and XIV allege that Evanston violated the Sanitary District Act and breached its common

law duty to charge reasonable and nondiscriminatory rates by imposing its new rates set forth in

the Punitive Rate Ordinance. (Am. Compl. ¶¶ 125-134.) Counts XIII and XIV are directly

related to and part of the same controversy as Plaintiffs’ federal constitutional claims arising

from the Punitive Rate Ordinance. Therefore, contrary to Evanston’s argument, this Court has

proper jurisdiction over Counts XIII and XIV.

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Even if the Court determines that Skokie does not have federal claims against Evanston,

Skokie may join Skokie Individual Plaintiffs’ case against Evanston under § 1367(a). Section

1367(a) expressly provides that supplemental jurisdiction includes claims that involve the joinder

or intervention of additional parties. 28 U.S.C. § 1367(a); see also Whitaker v. Young, No. 99 CV

8441, 2001 WL 138926, at *1-3 (N.D. Ill. Feb. 16, 2001) (exercising supplemental jurisdiction

over the second plaintiff who only had state law claims, because her state law claims were

interwoven with the first plaintiff’s federal claims).

Evanston further claims that Skokie fails to sufficiently allege a cause of action because

70 ILCS 2605/26 “simply prohibits one municipality from charging another municipality more

than its residents pay for water.” (Defs.’ Mem. 12.) It likewise claims that it is free to charge

Skokie an unreasonable and arbitrary amount for the water it receives. (Id.) Both of these

statements are false as a matter of law.

Illinois courts have consistently held that 70 ILCS 2605/26 requires municipal water

suppliers to charge rates that are reasonable and no greater than rates charged to their residents.

See Vill. of Niles v. City of Chicago, 82 Ill. App. 3d 60, 66 (1980) (“Language employed by the

Illinois Supreme Court in construing section 26 supports plaintiffs' contention that the rates

charged the suburbs must not only be no greater in price than those charged metered city users,

but must also be reasonable.”); City of Chicago v. Town of Cicero, 210 Ill. 290, 303 (1904)

(observing that “…the only limitation upon the right of the City in that respect [setting water

rates by ordinance for other municipalities under 70 ILCS 2605] is that it shall be a reasonable

rate and no greater than that charged to other consumers”).

In Niles, the court found “the fact that the suburban customers are charged the same rate

as metered intracity users does not establish that the rates are per se reasonable and

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nondiscriminatory.” 82 Ill. App. 3d at 66. The court held that the suburban communities

sufficiently stated a claim under 70 ILCS 2605/26 and the equal protection clauses of the federal

and state constitutions, that the rate Chicago charged them is unreasonable and discriminatory.

The Illinois Supreme Court has further stated: “The City is warranted in charging a

reasonable rate for its water, which must be uniform among all large water takers.” Cicero, 210

Ill. at 303; see also Niles, 82 Ill. App. at 68 (“The city's rates must be to a certain extent uniform,

reasonable and just for the same amount and character of service.”). “Where utility service is

provided by a municipality, the rule prohibiting unreasonable discrimination also applies.”

Niles, 82 Ill. App. 3d at 68. While Illinois law does not require absolute uniformity of rates,

“discrimination that is arbitrary and without reasonable factual justification” is prohibited. Id.

X. This Court Should Not Abstain

A. Younger abstention doctrine does not apply
Evanston argues that this Court should abstain under the doctrine articulated in Younger

v. Harris, 401 U.S. 37 (1971). Evanston fails to recognize that the Younger abstention doctrine

applies only in three exceptional circumstances. This case does not fall under any of the three

exceptions.

The Supreme Court cautioned that “only exceptional circumstances . . . justify a federal

court’s refusal to decide a case in deference to the States.” Sprint Commc'ns, Inc. v. Jacobs, 571

U.S. 69, 77 (2013); Mulholland v. Marion Cty. Election Bd., 746 F.3d 811, 815 (7th Cir. 2014)

(“The abstention doctrine set forth in Younger v. Harris is an exception to the general rule that

federal courts must hear and decide cases within their jurisdiction.”). These “exceptional”

circumstances exist in three types of proceedings: ongoing state criminal prosecutions, certain

civil enforcement proceedings, and civil proceedings involving the state court’s ability to

perform its judicial function. Sprint, 746 F.3d at 78. “[E]ven in the presence of parallel state

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proceedings, abstention from the exercise of federal jurisdiction is the ‘exception, not the rule.’”

Id. at 81–82.

This case does not involve an ongoing state criminal prosecution. As for the civil

enforcement proceeding exception, the Seventh Circuit clarified that “at least after Sprint,” only

a “quasi-criminal proceeding … would warrant Younger abstention” Mulholland, 746 F.3d at

816. (finding that county election board’s planned hearing on a candidate’s alleged violation of

the anti-slang statute did not constitute a quasi-criminal proceeding that would warrant

abstention). Evanston’s state court complaint seeking to declare the Punitive Rate Ordinance

valid is not a quasi-criminal proceeding, as it does not resemble a criminal adjudication or

implicate a possible criminal penalty. See id. at 817-18.

Finally, Evanston’s state court complaint does not amount to a state proceeding

“involving certain orders uniquely in furtherance of the state courts’ ability to perform their

judicial functions.” Sprint, 746 F.3d at 78; see also New Orleans Pub. Serv., Inc. v. Council of

City of New Orleans, 491 U.S. 350, 368 (1989) (“[I]t has never been suggested

that Younger requires abstention in deference to a state judicial proceeding reviewing legislative

or executive action.”).

B. Colorado River abstention is not appropriate

Evanston also argues that this Court should abstain pursuant to the Colorado River

doctrine because “this litigation is parallel to the proceeding in state court.” (Defs.’ Mem. 15.)

Contrary to Evanston’s argument, the present case involves entirely different parties litigating

different legal issues.

Suits are parallel when “substantially the same parties are contemporaneously litigating

substantially the same issue in another forum.” Freed v. J.P. Morgan Chase Bank, N.A., 756

F.3d 1013, 1019 (7th Cir. 2014) (quoting Interstate Material Corp. v. City of Chicago, 847 F.2d
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1285, 1288 (7th Cir. 1988)). Even when a state court proceeding involves the same plaintiffs,

arises from the same facts, and raises similar factual issues, a court may find that the proceedings

are not parallel if there are different legal issues present in the federal action that is not present in

the state action. See Warner v. Chauffeurs, Teamsters & Helpers Local Union No. 414, No.

1:16-CV-367-TLS, 2017 WL 1021311, at *7 (N.D. Ind. Mar. 16, 2017).

Evanston argues that both proceedings involve substantially the same parties and the

same issues. This is not true. The only issue in the state court litigation is Evanston’s request

that the Court issue a declaratory judgment upholding the Punitive Rate Ordinance. The state

court proceeding does not involve Skokie Individual Plaintiffs’ federal constitutional claims to

due process and equal protection and does not include the allegations against Evanston

Individual Defendants regarding their role in enacting the Punitive Rate Ordinance. The two

proceedings are not parallel, and therefore not subject to the Colorado River abstention doctrine.

Furthermore, the state court litigation is effectively stayed pending the resolution of this case. It

makes no sense for this Court to also stay its proceedings.

C. Wilton-Brillhart abstention is completely discretionary and this Court

should not exercise its discretion to abstain from deciding the federal issues
Evanston also claims that this Court should abstain under the Wilton-Brillhart doctrine.

Evanston argues that the current dispute arises entirely under an Illinois statute that requires rate

disputes be decided in the Circuit Court of Cook County. (Defs.’ Mem. 17.) As detailed in

Skokie’s Amended Complaint, the current dispute before this Court implicates far more than a

rate dispute arising entirely under Illinois statute. Skokie alleges oppressive and discriminatory

conduct by Evanston, in violation of both federal and Illinois laws.

Evanston relies on Arnold v. KJD Real Estate, which noted that the “Wilton-Brillhart

abstention is possible because of the federal court’s ‘unique and substantial discretion in

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deciding whether to declare the rights of litigants.’” 752 F.3d 700, 707 (7th Cir. 2014) (quoting

Wilton v. Seven Falls Co., 515 U.S. 277 (1995)). In a declaratory judgment suit, “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.” Id. “This is an inherently

discretionary call for the district court.” Id.

This Court should not exercise its discretion to abstain from deciding the federal issues in

this case. The scope of the state court case is exceedingly narrow. Evanston only seeks a

declaratory judgment to establish that the rate set forth in the Punitive Rate Ordinance is valid

and enforceable. The pending state court litigation cannot satisfactorily adjudicate Skokie’s

federal constitutional claims involving Evanston’s arbitrary and discriminatory rate setting

practices. Furthermore, the state court expects this Court to resolve the federal issues in this

case.

XI. Qualified Immunity Is Not Appropriately Determined On a Motion to Dismiss

Finally, Evanston argues that the individual Defendants should be dismissed because they

are entitled to qualified immunity. This argument is premature and inappropriate at this stage.

The Seventh Circuit advised that “a complaint is generally not dismissed under Rule 12(b)(6) on

qualified immunity grounds.” Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001).

“Because an immunity usually depends on the facts of the case, dismissal at the pleading stage is

inappropriate.” Id. Moreover, “[t]he plaintiff is not required initially to plead factual allegations

that anticipate and overcome a defense of qualified immunity.” Id. Skokie needs this litigation

to access the confidential recordings and minutes of the Evanston executive sessions which will

substantiate Evanston’s true intent and discriminatory purpose.

To overcome a qualified immunity defense, Skokie only needs to allege a violation of a

statutory or constitutional right that was clearly established at the time of the alleged violation.
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See Cage v. Harper, No. 17-CV-07621, 2018 WL 4144624, at *5 (N.D. Ill. Aug. 30, 2018).

Here, Plaintiffs allege a deprivation of their constitutional rights to due process and equal

protection and their rights to reasonable and non-discriminatory water rates under the Sanitary

District Act. These are clearly established rights at the time of the violation and still exist today.

See Niles, 82 Ill. App. 3d 60 (finding that suburban communities sufficiently established a cause

of action alleging that water rates Chicago charged suburban communities was unreasonable and

discriminatory, in violation of Illinois and federal constitutional and statutory rights).

At the motion to dismiss stage, Skokie has alleged sufficient facts to overcome a

qualified immunity challenge. Qualified immunity claims are questions of fact and are not

appropriate for resolution at this stage of the case.

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XII. Conclusion
For the reasons stated above, Plaintiffs respectfully request that the Court deny

Defendants’ Rule 12(b)(6) Motion to Dismiss Plaintiffs’ Amended Complaint.

Dated: October 2, 2018 Respectfully Submitted,

/s/ Michael M. Lorge

William J. McKenna (IBN 3124763) Michael M. Lorge (IBN 1981005)

Josephine J. Park (IBN 6328772) James G. McCarthy
Foley & Lardner LLP Village of Skokie
321 N. Clark Street, Suite 2800 5127 Oakton Street
Chicago, IL 60654-5313 Skokie, Illinois 60077
(312) 832-4500 (847) 933-8270

Attorneys for Village of Skokie, Elaine

Jacobson, Paul Pitalis, Robert Quane and
Georgia Nut Company

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CERTIFICATE OF SERVICE

I, Michael M. Lorge, hereby certify on October 2, 2018 that I electronically filed the

foregoing document using the Court’s electronic filing system, which will notify all counsel of

record authorized to receive such filing.

/s/ Michael M. Lorge

Village of Skokie