Plaintiff, the Pesticide Public Policy Foundation (“the Foundation”), challenges the validity of Village of Wauconda Ordinance No. 1984-0-31, which regulates the use of pesticides in the Village. The Foundation is a District of Columbia non-profit corporation whose members include professional lawn care, arborculture and pest control operators serving customers within Wauconda. Defendants are the Village of Wauconda, Illinois, Kenneth McGill, the Village President, and Jerry Bunce, Fred Dierker, James Eschenbauch, Steven Gurevitz, James Keagle, and Robert Ogren, Trustees of the Village of Wauconda.
The Wauconda ordinance requires “users of pesticides” to register and obtain a $25 per year permit from the Village. Ordinance No. 1984-0-31, § 7-12-2. “Users of pesticides” are defined as commercial pesticide applicators and landlords and tenants .of buildings open to the public who apply pesticides on those building premises. § 7-12-1. The ordinance prohibits pesticide application when the wind velocity is greater than ten miles per hour, § 7-12-4, and requires that warning signs be posted for 72 hours after application. § 7-12-5. The ordinance specifies the type and number of signs to be posted after spraying indoors, outdoors, and on lawns or lakes. For example, where pesticides are applied to a lawn, the applicator must post a sign which states: “This lawn is chemically treated, keep children and pets off for 72 hours.” § 7 — 12—5(B). The ordinance also regulates fogging; when that method of application is used, the user must give pri- or notice to abutting neighbors. § 7-12-5(C).
The Foundation challenges the Wauconda ordinance on a variety of grounds. Plaintiff first claims that the ordinance is invalid because the Village lacks the authority to regulate pesticides and users of pesticides. Specifically, the complaint al
Each count in the complaint contains an identical prayer for relief. Plaintiff requests that this Court declare that Ordinance No. 1984-0-31 is invalid under Illinois law or federal law and the United States Constitution and therefore was void ab initio; enjoin defendants from enforcing the ordinance; declare that defendants are liable for costs and expenses incurred in complying with Ordinance No. 1984-0-31; and grant to plaintiff the costs of the instant lawsuit.
Presently before this Court are defendants’ motion, pursuant to Fed.R.Civ.P. 12, to dismiss the complaint in its entirety, and plaintiff’s motion, pursuant to Fed.R.Civ.P. 56, for summary judgment in its favor on Counts I-IV of the complaint.
For the reasons stated below, defendants’ motion to dismiss is granted in part and denied in part, and summary judgment is granted in favor of plaintiff on Count III, with the exception noted below.
Discussion
As noted above, the first three counts of the complaint attack the authority of the Village of Wauconda to regulate pesticides. Count I of the complaint alleges that Ordinance No. 1984-0-31 was preempted by the Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”), 7 U.S.C.A. §§ 136-136y (1980 & Supp.1984), pursuant to the Supremacy Clause of the United States Constitution, Art. VI, cl. 2. FIFRA regulates the registration, distribution, use and labelling of pesticides and the certification of pesticide applicators throughout the United States. Because federal courts have a “strong duty to avoid constitutional issues that need not be resolved in order to determine the rights of the parties to the case under consideration,”
County Court of Ulster County, New York v. Allen,
Count II of the complaint alleges that the Village of Wauconda, as a non-home rule unit, does not have the authority to regulate the use of pesticides or to license pesticide applicators, and that as a result, Ordinance No. 1984-0-31 is invalid. Where a federal district court confronts questions of Illinois substantive law under diversity jurisdiction, the outcome is, of course, controlled by Illinois law.
Gates Rubber Co. v. USM Corp.,
The scope of an Illinois municipality’s power to legislate is determined by its status as either a home rule or a non-home rule unit. Home rule units “may exercise any power and perform any function pertaining to [their] government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt.” Ill.Const.1970, art. VII, § 6(a). Non-home rule units, however, “have only those powers expressly granted to them by the General Assembly or those necessarily implied from or incident to power expressly granted____”
Appeal Board of the Department of Environmental Control v. United States Steel Corp.,
Defendants maintain that the challenged ordinance is a valid exercise of municipal authority under statutory provisions which
As discussed below, this Court finds that these two Illinois pesticide statutes preempt local governmental regulation in that area. Thus, although it is true that a general police power provision such as section 11-20-5 of the Illinois Municipal Code authorizes municipalities to legislate on a wide range of community health hazards, 1 it is unnecessary for this Court to decide whether, in the absence of the two Acts, the Village would have the authority to regulate pesticide use.
State Preemption
In Count III of the complaint, the Foundation asserts that the Wauconda ordinance is preempted by the Illinois Pesticide Act of 1979, Ill.Rev.Stat. ch. 5, §§ 801-828 (1983), and the Illinois Structural Pest Control Act, Ill.Rev.Stat. ch. 111-½, §§ 2201-2225 (1983). These statutes regulate the registration, distribution and use of pesticides and the licensing of pesticide applicators in the State of Illinois. According to plaintiff, neither Act authorizes or allows Illinois municipalities or units of local government to further regulate pesticides.
The purpose of the Illinois Pesticide Act of 1979 (“IPA”) is “to regulate in the public interest the labeling, distribution, use and application of pesticides____” Ill.Rev.Stat. ch. 5, § 802 (1983). The obligations of the Act are enforced by three Illinois State agencies: the Department of Agriculture administers the Act and supervises the registration of pesticides and agricultural uses; the Department of Public Health oversees structural or indoor pest control; and the Environmental Protection Agency enforces those provisions of the Act which protect the air and water. Ill.Rev.Stat. ch. 5, § 803. The Act provides for annual registration of pesticides, annual licensing of commercial applicators, and certification of applicators of restricted pesticides. Ill.Rev.Stat. ch. 5, §§ 806, 810, 811. The Act also prohibits handling or storing pesticides in an unsafe manner and disposing of pesticides or their containers in such a manner as to endanger public health or the environment or to pollute water supplies. Ill.Rev.Stat. ch. 5, § 814. The Director of Agriculture is further authorized to promulgate additional regulations concerning the storage, distribution and disposal of pesticides and their containers, the methods of pesticide application, and packaging. Ill.Rev.Stat. ch. 5, § 808.
The Structural Pest Control Act (“SPCA”) similarly protects public health and welfare by extensive regulation of pesticides. As outlined in the general purposes section of the SPCA, the Act establishes minimum standards for selection, formulation and application of restricted pesticides. Ill.Rev.Stat. ch. 111½, § 2202. It also requires licensing of commercial
Defendants maintain that Ordinance No. 1984-0-31 is neither expressly nor impliedly preempted by the Illinois pesticide statutes. Defendants point out, correctly, that neither Act contains any language which specifically prohibits local governmental regulation in the field of pesticide control.
They further argue that the General Assembly’s lack of intent to preempt local pesticide regulation can be seen by comparing the pesticide acts with two statutes which do preempt local regulation. Defendants give as an example the Illinois Environmental Protection Act (“EPA”), which states that its purpose is “to establish a unified state-wide program.” Ill.Rev.Stat. ch. 111½, §§ 1001, 1002(b) (1983). They also point to the State Insurance Code, which states that the powers enumerated in that Code “shall not be exercised concurrently, either directly or indirectly, by any unit of local government,” as an example of specific intent to preempt. Ill.Rev.Stat. ch. 73, § 614.1 (1975), quoted in
Prudential Insurance Company of America v. City of Chicago,
In addition, defendants observe that the SPCA states that its purpose is to provide for “the establishment of minimum standards” for the use of restricted pesticides. Ill.Rev.Stat. ch. 111½, § 2202 (emphasis added). Defendants argue that this language demonstrates that the General Assembly intended only to establish minimum criteria for pesticide use, which then could be supplemented by other governmental units.
Defendants’ arguments are not persuasive to this Court. “As applied to state action versus local action, preemption means that where the legislature has adopted a scheme for regulation of a given subject, local legislative control over such phases of the subject as are covered by state regulation ceases.”
Hutchcraft Van Services, Inc. v. City of Urbana Human Relations Commission,
It is essential to any discussion of state law preemption in Illinois to recognize that there are two separate preemption standards for home rule and non-home rule units. In
County of Cook v. John Sexton Contractors Co.,
With regard to a non-home rule unit like the Village of Wauconda, then, legislative intent to preempt may be implied. “[E]xclusivity may be expressed in other ways, notably by enactment of a comprehensive regulatory scheme____”
Hutchcraft,
In
Dolson,
the court inferred legislative intent to preempt from a comprehensive regulatory scheme. The plaintiff in
Dolson
had obtained a permit to erect off-premise advertising from the Illinois Department of Transportation, pursuant to the Illinois Highway Advertising Control Act, Ill.Rev.Stat. ch. 121, § 514.01 (1975). Defendant, the City of Macomb, a non-home rule municipality, had enacted a zoning ordinance which prohibited billboards in certain areas.
Dolson,
Similarly, in
Union National Bank and Trust Co. v. Board of Supervisors of Kendall County,
Furthermore, courts also look to factors other than the comprehensiveness of a State regulatory scheme to infer State preemption. “Municipalities cannot ... adopt ordinances under a general grant of power which infringe upon the spirit of the State law____”
Village of Mundelein v. Hartnett,
The Foundation is an association whose members include commercial law care, arborculture and pest control operators serving customers within the Village of Wauconda limits. Under the Illinois statutory scheme, these commercial applicators must be licensed annually by the State in order to conduct business, and they are subject to State regulation as to which pesticides they may use and the proper methods of application and disposal of these pesticides. As in Dolson, Union National, and Carlson, the Village of Wauconda’s ordinance attempts to impose further restrictions on and require an additional permit for pesticide applicators who already are subject to extensive State regulation and licensure.
Furthermore, the Illinois Pesticide Act of 1979 indicates a legislative desire for uniformity of regulation. Section 820 of the IPA provides:
Cooperation. The Director [of the Department of Agriculture] may cooperate with, receive grants in aid and enter into cooperative agreements or contracts with, any agency of the federal government, of this State, or any other state in order to:
1. Secure uniformity of regulation.
2. Register pesticides under the authority of this Act and FIFRA.
3. Cooperate for the enforcement of any pesticide law and regulation adopted thereunder.
4. Develop and maintain a State Plan for training, certification, licensing and the issuance of permits.
5. Monitor pesticides or regulate certified applicators in order to protect public health and the environment.
Ill.Rev.Stat ch. 5, § 820 (1983).
As noted above, the Illinois Supreme Court in Carlson held that “uniformity” language in the EPA implied a legislative intent to preempt the field of environmental control. Defendants argue that because the EPA language discussed in Carlson referred to a “uniform state-wide system of regulation,” while the IPA provides for uniformity of regulation between states and between this State and the federal government, the rationale of Carlson is inapplicable to the instant case. This Court does not find defendants’ proffered distinction to be persuasive.
Rather, this Court, following the rationale of the New York appellate court in
Ames v. Smoot,
Although this Court is not bound to follow the law of other states in deciding a question of Illinois substantive law, this Court finds it significant that courts in three states which considered the issue have held that local governmental regulation of pesticide use was preempted by state statute. In Ames, the State statute established a system of pesticide regulation which included the designation of restricted use pesticides and a scheme for testing and certifiying pesticide users. Further, the State commissioners of environmental conservation had jurisdiction over all matters involving the distribution, sale, use and transportation of pesticides. The court held that this statute preempted all local pesticide regulation because, as discussed above, it sought national uniformity of regulation, and also because of the complete and detailed nature of the legislative scheme.
The Massachusetts Supreme Court reached a similar conclusion in
Town of Wendell v. Attorney General,
Like the pesticide statutes in the instant case, the Massachusetts act contains no language either authorizing or forbidding local regulation of pesticides. Id. at 590. Thus, the question before the court was whether the local enactment would clearly frustrate a statutory purpose. Id. at 591. The court noted that under the Massachusetts Act, before a pesticide can be registered with the State, a State committee must determine that use of the pesticide will not cause unreasonable adverse effects on the environment. The court also found that the Town of Wendell regulation clearly authorized the Town board of health to impose greater restrictions on the use of pesticides than those imposed in the State statute.
From these findings, the Massachusetts Supreme Court concluded:
The legislature has placed in the subcommittee the responsibility of determining on a statewide basis, pesticide by pesticide, whether its use will cause unreasonable adverse effects to the environment____ An additional layer of regulation at the local level, in effect second-guessing the subcommittee, would prevent the achievement of the identifiable statutory purpose of having a centralized, statewide determination of the reasonableness of the use of a specific pesticide in particular circumstances.
Id. at 592. Thus, the court held that the local ordinance frustrated a purpose of the State statute and therefore was preempted by that statute.
Similarly, in
Town of Salisbury v. New England Power Company,
For these reasons, this Court denies defendants’ motion to dismiss Count III of the complaint and grants summary judgment in favor of plaintiff on Count III.
This Court declares that Ordinance No. 1984-0-31 is invalid under Illinois law and therefore was void ab initio. This Court further enjoins defendants from enforcing Ordinance 1984-0-31.
The Request for a Judicial Declaration of Defendants’ Liability
In addition to the relief granted thus far, however, plaintiff requests that this Court declare that, under both state and federal law, defendants are liable for the costs and expenses incurred by plaintiff’s members in complying with Ordinance No. 1984-0-31. Plaintiff has cited no authority under Illinois law to support its request for damages, and insofar as this Court is aware, none exists. Plaintiff asserts only that defendants are liable for damages under 42 U.S.C. § 1983 (“Section 1983”). Section 1983 provides:
Every person who, under color of any ... ordinance ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws [of the United States], shall be liable to the party injured in an action at law____ 42 U.S.C. § 1983.
The Supreme Court in
Monell v. New York City Department of Social Services,
In
Monell,
the court held that local governing bodies can be sued directly for money damages under Section 1983 when unconstitutional action is implemented through officially adopted policy or decision or through governmental custom. Moreover, in a later case the Supreme Court held that a municipality does not possess the defense of good faith immunity of its officers as an escape from liability under Section 1983.
Owen v. City of Independence, Missouri,
Finally, the Supreme Court has recently set forth the distinction between personal-capacity and official-capacity suits against state or local officials in
Kentucky v. Graham,
— U.S.-,
In this case, in addition to the Village of Wauconda, the Foundation has sued the president and the trustees of the Village without specifying whether they are sued in their official or personal capacities. To compound the confusion, although neither party raises the issue, the Seventh Circuit has held that absolute immunity from personal liability extends to municipal officials acting in a legislative capacity.
Reed v. Village of Shorewood,
The Seventh Circuit in Reed also held, however, that a municipality may be liable for acts for which the policy-making officials themselves enjoy absolute immunity from personal liability:
The official acts of municipal policy makers are acts of the municipality for purposes of section 1983 liability. See Schneider v. City of Atlanta,628 F.2d 915 , 920 (5th Cir.1980); Black v. Stephens,662 F.2d 181 , 191 (3d Cir.1981). And the municipality’s liability for such acts extends to acts for which the policy-making officials themselves might enjoy absolute immunity because the acts were legislative or judicial in character. Owen v. City of Independence,445 U.S. 622 ,100 S.Ct. 1398 ,63 L.Ed.2d 673 (1980), so held with regard to the qualified immunity of municipal officers for their executive acts, and we cannot see why there should be a different result here just because these officers’ immunity is absolute rather than qualified. The rationale of Owen, that holding the municipality liable creates incentives to avoid illegal behavior without at the same time over-deterring individuals by the threat of crushing personal liability,445 U.S. at 655-57 ,100 S.Ct. at 1417-18 , applies with as much force to legislative and judicial as to executive officers.
Reed, supra,
In this case, therefore, although the individual defendants enjoy absolute immunity from a suit for damages caused by the enactment of an allegedly unconstitutional ordinance, the Village itself may be held liable for damages resulting from implementation and enforcement of the invalid ordinance because that ordinance embodies the policy and custom of the Village. Moreover, under Owens v. City of Independence, supra, the Village has no absolute immunity defense to liability for damages, although that defense may be available to the Village officials sued in their personal (or individual) capacities.
Thus, to fully resolve the dispute between the parties to the instant action, it is necessary for this Court to examine plaintiff’s federal claims to determine whether plaintiff’s members may be entitled to damages under Section 1983.
The Standing Challenge
As a preliminary matter, the Court must address defendants’ motion to dismiss this request for damages. Defendants assert that plaintiff does not have standing to seek money damages on behalf of its members because resolution of the damage claim requires participation of Foundation members in the lawsuit.
The first requirement for an association to have standing to sue on behalf of its members is that “its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit.”
Warth v. Seldin,
Associational standing, however, also depends in substantial measure on the nature of the relief sought. If in a proper case the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured.
Common Cause v. Bolger,
In
Warth v. Seldin,
the Supreme Court held that an association lacked standing to claim money damages on behalf of its members. The Court noted first that the association alleged no monetary injury to itself nor any assignment of the damages claim of its members.
Id.
at 515,
In the instant case, as plaintiff points out, the Foundation does not request an award of damages on behalf of its members. Rather, the association seeks only a declaration from this Court that defendants are liable to its members for the costs and expenses of compliance with the Wauconda ordinance. Such a declaration cannot be categorized as prospective relief, because its purpose is to compensate plaintiffs members for the past effects of an invalid ordinance. It would not, however, require the participation of individual members in this lawsuit.
Plaintiff has not cited, and this Court has not found, a single case where an association has sought this hybrid form of relief. In essence, plaintiff has fashioned its request for relief in a novel manner in order to circumvent the associational standing requirements of
Warth v. Seldin
to assert a claim for damages. If this Court were to issue a declaration of defendants’ liability, plaintiff’s members would be in a position where they would be entitled to receive damages from defendants upon the production of individualized proof. That the members would be required to go into another court to actually obtain the money judgment is a distinction that violates the spirit of the Supreme Court’s holding in
Warth v. Seldin
and its concern that “absent the necessary allegations of demonstrable, particularized injury,”
id.
Because this Court’s holding that plaintiff lacks standing to request a declaration of liability for damages appears to be of first impression, this Court will proceed to consider each of plaintiff’s alleged Section 1983 claims, in an effort to avoid further litigation on this issue. This Court finds that, even if plaintiff had standing to assert a claim for a declaration of entitlement to damages, damages are not available as a matter of law under any of plaintiff’s claims under Section 1983. 5
The Federal Preemption and Commerce Clause Claims
As discussed above, Count I of the complaint alleges that Ordinance No. 1984-0-31 was preempted by FIFRA pursuant to the Supremacy Clause, and that thus the adoption of the ordinance was beyond the scope of defendants’ authority in violation of Section 1983.
The Seventh Circuit recently held that an alleged violation of the Supremacy Clause is not cognizable under Section 1983.
Gould, Inc. v. Wisconsin Department of Industry, Labor and Human Relations,
Section 1983 was enacted to override discriminatory state laws and provide a remedy where state law was inadequate or unenforced.
Monroe v. Pape,
Therefore, even if the Foundation succeeded on its federal preemption claim,
Equal Protection Claims
Count IV alleges that Ordinance No. 1984-0-31 violates the equal protection clauses of both the United States and the Illinois Constitutions, U.S. Const. amend. XIV, § 1; Ill. Const. 1970, art. I, § 2, as well as the Illinois Constitution’s prohibition against special legislation, Ill. Const. art. IV, § 13. 7 There is no question that an alleged violation of the fourteenth amendment is cognizable under Section 1983. Accordingly, this Court will analyze Count IV on its merits. 8
According to plaintiff, Ordinance No. 1984-0-31 deprives its members of equal protection of the laws because it imposes burdensome requirements on certain groups of pesticide users while completely exempting other users. The Wauconda ordinance applies only to “users of pesticides.” A “user of pesticides” is defined in § 7-12-1 of the ordinance as “(1) a person who is engaged in the business of applying pesticides for hire, or (2) any person who is the landlord or tenant of a building to which the public is invited____” Under the ordinance, any “user of pesticides” must comply with the permit, application, fee, posting, and warning requirements described above. The Foundation complains that the ordinance imposes no requirements whatsoever on other groups of pesticide users, such as non-commercial applicators, homeowners, landlords and tenants of non-public buildings, owners of golf courses and cemetaries, and farmers.
The classification drawn by the Wauconda ordinance, between “users of pesticides” and those outside the scope of that definition, does not implicate a suspect class or a fundamental right. Therefore, “[t]he requirement imposed by both the Illinois and the Federal Equal Protection clauses is that [the] legislative classification must bear a rational relationship to the purpose of the legislation.”
People v. Keeven,
Defendants claim that the Wauconda ordinance’s legislative classification is reasonably related to the Village’s main purpose in enacting the ordinance: to protect the public health. According to defendants, the ordinance requires the posting of notices that pesticides have just been sprayed or applied in order to warn persons susceptible to adverse reactions to the chemicals of the presence of those pesticides. As defendants explain, persons likely to have an adverse reaction to a pesticide are more likely to come into contact with a pesticide which is applied in a building open to the public than with a pesticide applied in a private area, such as a home or garage. Similarly, a commercial applicator, who sprays and applies pesticides for a living, is likely to apply pesticides within the Village more often than private individuals, so that a pesticide-sensitive person is more likely to come into contact with pesticides applied by a commercial operator.
The Foundation argues that persons who are sensitive to pesticides will have an adverse reaction regardless of who applies the pesticide. Plaintiff submitted an uncontroverted affidavit from Leonard Conley, an agronomist for a commercial lawn care operator, stating that commercial applicators apply the same pesticides that are used by the general public (Mem. in Support of Plaintiff’s Motion for Summary Judgment, Exhibit J). The Foundation also contends that it is irrational to exclude from regulation homeowners who have little knowledge of the proper use of pesticides and have not been trained or licensed.
In order for a legislative enactment to withstand an equal protection challenge, however, it is not necessary that the problem it addresses be eliminated in its entirety. A legislative body’s “statutory classifications will be set aside only if no grounds can be conceived to justify them, [citations omitted] With this much discretion, a legislature traditionally has been allowed to take reform ‘one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind____’”
McDonald v. Board of Election Commissioners,
This Court finds that the classification drawn by the ordinance is reasonably related to the purpose of the ordinance and holds that Ordinance No. 1984-0-31 does not deprive the Foundation’s members of equal protection of the laws.
The Foundation also claims that the Wauconda ordinance violates the Illinois Constitution’s prohibition against special legislation. “Special legislation confers a special benefit or exclusive privilege on a person or a group of persons to the exclusion of others similarly situated. It arbitrarily, and without a sound, reasonable basis, discriminates
in favor of
a select group____”
Illinois Polygraph Society v. Pellicano,
Plaintiff fails to explain to this Court’s satisfaction the manner in which the Wauconda ordinance confers a special benefit on a select group. In addition, Illinois courts have adopted the same “rational basis” test used in equal protection challenges for determining whether legislation violates the prohibition against special legislation. Therefore, because the complaint fails to state a cause of action for violation of the equal protection clauses, it also fails to state a cause of action for violation of the Illinois Constitution’s prohibition against special legislation.
Because Count IV is the only one of plaintiff’s claims that is cognizable under Section 1983, this Court can not grant plaintiff’s request for a declaration of de
Accordingly, Count IV of the complaint is dismissed for failure to state a claim upon which relief may be granted, and plaintiff’s motion for summary judgment is granted.
Conclusion
For the reasons stated above, defendants’ motion to dismiss Count III is denied and plaintiffs motion for summary judgment on Count III is granted, with the exception of its request for a declaration of defendants’ liability for damages. Counts I and V of the complaint are dismissed to the extent that those Counts request a declaration of defendants’ liability for damages pursuant to 42 U.S.C. § 1983. Defendants’ motion to dismiss Count IV is granted in full. Accordingly, this case is disposed of in full.
This Court declares that Ordinance No. 1984-0-31 is invalid under Illinois law, and therefore was void ab initio. This Court further enjoins defendants from enforcing Ordinance No. 1984-0-31. Plaintiffs request that this Court declare that defendants are liable for the costs of compliance with Ordinance No. 1984-0-31 is denied.
Notes
.
E.g., Radcliff
v.
City of Berwyn,
129 IlI.App.3d 70,
.
Carlson
has been superseded by statute, as noted in
American Fly Ash Co. v. County of Tazewell,
But see County of Kendall v. Avery Gravel Co.,
.
See also Comity of Kendall v. Avery Gravel Co.,
. The District of Columbia Circuit in
Common Cause
went so far as to state that the first test for associational standing is that the association must seek prospective relief.
Cf. Peick v. Pension Benefit Guaranty Corp.,
. This Court will only examine the substantive issues arising from a particular count of the complaint if that claim could support a judgment for damages under Section 1983.
. The court in
Gould
noted in a footnote that
Consolidated
relied in part on
Chapman v. Houston Welfare Rights Org.,
See also Pirolo v. City of Clearwater,
. Count IV of the complaint also alleges that Ordinance No. 1984-0-31 violates the due process clauses of the United States and Illinois constitutions. Nowhere in its briefs does plaintiff provide any support for this claim. Further, the complaint fails to identify any liberty or property interest of which plaintiffs members were deprived. Thus, there is no need for further discussion; defendants’ motion to dismiss plaintiffs due process claims is granted and plaintiffs motion for summary judgment on those claims is denied.
. In
Gould, Inc. v. Wisconsin Department of Industry, Labor and Human Relations,