Memorandum Opinion and Order
In December 2007, the Village of Park Forest, Illinois, brought suit against Thorncreek Apartments II, LLC, and its management agent, Atlantic Management Corporation, in the Circuit Court of Cook County, alleging zoning code and building code violations. After the case was removed to federal court, Doc. 1 (08 C 869), Thorncreek Management, LLC, filed an intervenor complaint, Doc. 69 (08 C 869), and Thorncreek II counterclaimed against the Village and filed third-party claims against Village officials, Doc. 102 (08 C 869). In February 2008, Thorncreek Apartments III, LLC, and Thorncreek Management filed' suit in federal court against the Village and its officials. Doc. 1 (08 C 1225). And in July 2008, Thorn-creek Apartments I, LLC, and Thorncreek Management filed a materially identical suit in federal court. Doc. 1 (08 C 4303). For ease of reference, and unless otherwise indicated, the Thorncreek entities and Atlantic will be referred to collectively as “Thorncreek,” the Village parties will be referred to collectively as “the Village,” Thorncreek’s claims and counterclaims will be referred to simply as “claims,” and all docket entries will be to Case 08 C 1255. A two-week jury trial has been set for April 7, 2014. Doc.189.
Thorncreek’s claims against the Village, which are brought under 42 U.S.C. §§ 1981, 1983, 1985, and 1986, and Illinois law, arise from the Village’s denial of Thorncreek’s requests for licenses to operate a multifamily dwelling, denial of “certificates of occupancy” required to house new tenants, promulgation and allegedly discriminatory enforcement of an electricity ordinance, and denial of a conditional use permit for Thorncreek’s leasing office. Put simply, Thorncreek alleges that the Village targeted it because the vast majority of its tenants were African-American. Now before the court are the Village’s motion for summary judgment, Doc. 142, and Thorncreek’s motion for partial summary judgment as to liability, Doc. 140. By agreement of the parties, the summary judgment proceedings in all three cases (08 C 869, 08 C 1225, and 08 C 4303) have been consolidated for decision in 08 C 1225 before the undersigned judge. For the following reasons, Thorncreek’s motion is denied, and the Village’s motion is granted in part and denied in part.
Background
“With cross summary judgment motions, [the court] constructs] all facts and inferences therefrom in favor of the party against whom the motion under consideration is made.” In re United Air Lines, Inc.,
The Village is a municipality in Illinois. Lawrence Kerestes has been the Village Building Commissioner since 1984 and Director of Community Development since 2004. Tom Mick has been the Village Manager since January 2005. Mae Brandon, Bonita Dillard, Gary Kopycinski, Kenneth W. Kramer, Robert McCray, and Georgia O’Neill are Village Trustees. John A. Ostenburg has been the Village President since 1999. Sheila McGann is the Village Clerk. Thorncreek is a limited liability company that at all relevant times owned and operated a complex of rental townhomes in Park Forest; the complex includes 632 units and is divided into sectors commonly known as Areas F, G, and H. David Clapper is a principal of Thorn-creek, and Pat Clapper works for Thorn-creek.
B. The Village Code
Thorncreek has from time to time applied under the Village Code for licenses to operate multifamily dwellings in the Village. Section 22-468(a) of the Code states that the “applicant shall be required to demonstrate the applicant’s qualifications ... either by previous or other experiences or by submitting a plan of management and operation to be approved by the village building commissioner.” Doc. 157-5 at 76. Section 22-468(b) states that the Village Manager shall review each application and that where the “application [is] for a renewal of a license,” the renewal shall be issued if “the applicant is deemed to have made a good faith effort to comply with” the Code. Ibid. Section 22-469 states that “renewal [of such licenses] is required on an annual basis.” Ibid. Section 22-472 provides that multifamily dwelling license applications must “set forth the race, sex, marital status, age -or national origin of the occupants of the rental units.” Id. at 77. Mick, the Village Manager, typically would delegate the review of such applications to other departments. Doc. 150-5 at 44.
Section 18-255 of the Code provides that a dwelling unit may not be occupied until the Building Commissioner issues a certificate of occupancy for the unit. Doc. 149-1 at 31. The Commissioner issues certificates of occupancy after the Commissioner or a designee inspects dwellings to ensure that there are no Code violations. Ibid. A temporary certificate may be issued if the inspection reveals violations, provided that the unit’s owner takes steps to ensure abatement of the violations. Id. at 32.
C.Events in 2005
The Village began to focus on Thorn-creek in 2005, when 90-95% of Thorn-creek’s residents were African-American. The Village disliked the predominantly African-American makeup of Thorncreek and wanted to reduce the number of African-American residents. According to testimony from Kerestes, the Building Commissioner, the Village was concerned that Thorncreek’s racial makeup was “highly skewed,” believed that there were “too many blacks living in Thorncreek Apartments as opposed to the rest of the community,” and preferred that there be “fewer black people” at Thorncreek. Doc. 150-7 at 39-40.
On September 16, 2005, Mick emailed the Trustees about a meeting with Thorn-creek representatives at which he had conveyed his “feelings about the ... quality of [Thorncreek’s] tenants” and asserted that the “tenants [are] draining our community’s businesses, schools and local government services.” Doc. 157-1 at 16-17. Three months earlier, Mick had emailed the Trustees and Ostenburg, the Village President, to say that a recent court ruling “might [be] another tool in our arsenal if we can’t convince [David] Clapper nicely to
The Village routinely cited minor or manufactured infractions during unit inspections at Thorncreek as grounds for not issuing certificates of occupancy. Inspectors scratched varnish and claimed there was flaking, pulled a toilet from the wall, cited units as having inoperable furnaces without conducting testing, and kicked bricks to crumble mortar. The Village’s Chief Building Inspector denied certificates of occupancy on the ground that certain trees oh the property were diseased or dead.
Thorncreek submitted its license renéwal application for 2005 without providing demographic information about its tenants. On March 24, 2005, Kerestes wrote to Pat Clapper expressing “serious concern” about Thorncreek operating without a business license, stating that Thorn-creek’s application was missing “the required Fair Housing” form and was thus incomplete, and warning that additional inspections of ready units would be contingent upon inspectors not finding any housing code violations. Doc. 157-1 at 8. Thorncreek protested that providing demographic information would violate state and federal anti-discrimination laws, but stated that it had “neither the funds nor the time to contest the ordinance,” agreed to collect and provide such information, and asked that it be allowed to do so as,to new residents rather than existing ones. Id. at 9-10. On March 31, 2005, the Village agreed to allow Thorncreek to provide the information on a rolling basis. Id. at 11.
On November 8, 2005, Mick emailed the Trustees and Ostenburg to report that Thorncreek had requested more inspections per week. Mick stated that he told Thorncreek that he “would like them to start leveraging other properties in their portfolio to do millions of dollars in property upgrades” and that “Village staff would be glad to bring interested developers ... that would be willing to huy tracks of property.” Doc. 157-1 at 38. On December 16, 2005, Mick reported to the Trustees that Thorncreek was “losing revenue with no occupancy” due to a high vacancy rate and that he had told Thorncreek that he wanted multimillion dollar property upgrades .and was willing to consider providing. more inspections if Thorncreek paid for them. Id. at 45. In. the meantime, Thorncreek applied, to. Lehman Brothers Bank for a refinancing-loan for Area F.
On December 6, 2005, Keretes advised the Trustees to pass an ordinance that would require operators of multifamily dwellings to upgrade a unit’s electrical service to a minimúm of 100 amperes upon a change of occupancy. Doc. 150-8 at 27-28. Kerestes told the Trustees that the ordinance was necessary to address technical and safety concerns. Ibid.; Doc. 150-7 at 33-34. On December 12, 2005, the Trustees enacted Ordinance No. 1835, which implemented Kerestes’s recommendation. The ordinance did not affect Areas F and H, whose units all had at least 100-ampere electrical service. The units in Area G, by contrast, had. 60-ampere service. In a March 2006 letter to Mick, Pat Clapper wrote: “The electrical upgrades to the ‘G’ Courts place a serious financial burden upon us.... To the extent the electrical upgrades can be made within each unit, we
Another housing complex in the Village, Autumn Ridge Apartments, had 60-am-pere electrical service in its 304 apartment units and 80 townhomes. The owner of Autumn Ridge, Andrew Brown, told Mick in December 2007 that compliance with Ordinance No. 1835 was “essentially economically impossible” for Autumn Ridge and ■ that “we cannot afford to pay for compliance.” Doc. 154-1 at 2. Brown stated that Autumn Ridge had a different means of providing heating and cooling to its residents and that there was no need for an electrical upgrade. Ibid. The Village agreed not to enforce the ordinance against Autumn Ridge for ten years to allow it to phase in the upgrades. Doc. 155-4 at 40. The agreement was made orally and informally between Brown and Mick because a formal variance from the Village “was [not] going to be forthcoming.” Ibid. Autumn Ridge was never denied a license, even when it had not yet complied with the electrical ordinance. Id. at 38. And the Village did not refuse to issue certificates of occupancy or to conduct inspections as a result of Autumn Ridge’s noncompliance with the ordinance. Id. at 39. Thorncreek received no such exemption from the ordinance.
D. Events in 2006 and 2007
On January 25, 2006, Thorncreek submitted one renewal application on behalf of all three properties for a 2006 multifamily dwelling license. On January 27, 2006, Kerestes wrote to Mick, stating that “it appears that we do not hav[e] any reason not to issue the- license and will do so.” Doe. 147-14 at 2. On March 9, 2006, Kerestes emailed Mick, reporting that Lehman Brothers had expressed its “serious concern” about the lack of a license and stating: “I have the feeling the loan is not going to be issued.” Doc. 157-1 at 63.
In a March 2006 meeting with Pat Clapper, Kerestes stated that the racial profile of Areas F, G, and H changed drastically soon after it was acquired by Thorncreek. Kerestes also said that simply remedying the existing Code violations would -not allow Thorncreek to obtain a 2006 business license and that the Village “wanted a plan that would include a lot more capital improvements.” Id. at 66-67. Kerestes told Mick that he had told Thorncreek that “only after an acceptable plan has been submitted[ ] would the Village consider issuance of the management license.” Id. at 68. Kerestes added: “I believe they [Thorncreek] are extremely concerned about not getting their loan.” Ibid, (emphasis omitted). At another March 2006 meeting, Kerestes told Pat Clapper that since David Clapper had acquired Thorn-creek, the racial makeup of Park Forest had changed from “58% white, 39% black” to “90% black and 10% white” and that “[a]ll this change was first observed in Thorn Creek.” Id. at 72. Kerestes added that the improvements at Thorncreek sought by the Village would draw a “better clientele” to the complex. Id. at 73.
On March 14, 2006, Pat Clapper submitted a revised Management Plan for all three Thorncreek properties. Doc. 146-9 at 2-4; Doc. 150-3 at 25. In so doing, she stated that “[w]e have yet to receive a [2006] license or a written statement as to why we are not entitled to a license.” Doc. 146-8 at 2.
On April 19, 2006, in a letter sent by Mick and copied to Ostenburg, the Trustees, and Kerestes, the Village formally denied Thorncreek’s 2006 renewal applica
On May 9, 2006, Mick wrote to Ostenburg regarding the unrenewed license and a donation that' Thorncreek had made to the Village, stating at one point: “Perhaps my thoughts are getting clouded with my disdain for David Clapper.” Id. at 11. On June 22, 2006, the Village Attorney wrote to Kerestes and Mick, noting that Thorn-creek “arguably shows good faith to bring Area F into compliance,” but that Thorn-creek did not address Areas G and H and that a consolidated application had been submitted for all three areas. Id. at 21. On June 23, 2006, Mick wrote to Pat Clapper, stating that her May 5 letter was inadequate because it did not address violations in Areas G and H. Doc. 147-1 at 2.
On October 31, 2006, Mick wrote to Pat Clapper, stating that the Village would issue a license for Area F “provided that a separate application for license is submitted for each of the three Areas.” Doc. 147-2 at 2. On November 3, 2006, the Village issued Area F a 2007 license. In early 2007, Area F was sold to a third party. Doc. 159 at ¶ 39.
On January 29, 2007, copying Mick and the Village attorney, Kerestes informed Pat Clapper that Areas G and H were out of compliance because they had not submitted applications, which he said- had been “sent out to” Thorncreek on November 30, 2006. Doc. 147-3 at 2. As a result, Mick stated, “the village cannot approve any Certificates of Occupancy” and “any inspections would be pointless.” Ibid. In fact, the Village had not sent Thorncreek the application' forms that Kerestes claimed were sent. Doc. 152-3 at 2; Doc. 159 at ¶ 37. Thorncreek ultimately submitted a 2007 application for Areas G and H, including a Management Plan and a Fair Housing form. Doc. 152-3 at 2. On May 7, 2007, the Chief Building Inspector emailed Kerestes to say that she recommended issuing Thorncreek a license for Area H. Doc. 157-3 at 61. Kerestes forwarded Fisher’s email to Mick, noting that “[i]t appears as though Area H may be acceptable to issue the license” but that Area G had still not complied with the electrical ordinance. Ibid. No business license was. issued for Area G or Area H.
In February 2007, Thorncreek applied for a conditional use permit to use a residential townhome located in Area G as a leasing office for Areas G and H. Doc. 147-5. In early March 2007, Kerestes requested additional information regarding plans and upgrades to the leasing office. Doc. 147-6.’ In late March 2007, Pat Clapper responded to the information request, stating' that some upgrades would be made and that others would be made “where required.” Doc. 147-7. Then, in early May 2007, Pat Clapper submitted a revised petition for a conditional use permit. Doc. 147-8. On June 5, 2007, the Village Plan commission met to discuss the permit. Doc. 153-2. On August 31, 2007, Mick emailed the Trustees, noting that the conditional use permit was scheduled for consideration at a September 4 board meeting, and stating that the petition could be denied for any of several reasons. Doc. 153-4. At the September 4 meeting, Os
E. Events in 2008
In an email to the Trustees on February 22, 2008, Mick reported that Thorncreek was trying to sell Area H and remarked: “It is my hope that they are successful in their endeavor. Perhaps the Village’s collective efforts (Troubled Building and Property Task Force, citing them, pursuing action in local court, denying their Business Office relocation into the G-Courts, cutting off change of occupancy inspections in the G-Courts due to no updating of electrical service to 100 AMP service, etc.) are beginning to have the desired effect we were seeking. That is, we hope to find as many ways as possible to help them see that their business practices are neither appreciated by the Village and the residents as a whole nor are we willing to stand idly by and let them continue to be a drain on our community.” Doc. 151-6 at 3-4. The same day, Mick wrote an email to the Village Police Chief regarding search warrants executed at Thorncreek units and whether Thorncreek had conducted criminal background checks on the residents involved. Mick asked Fleming whether he could share details on the individuals involved with Thorncreek, stating: “I enjoy shoving it up their ass in a firm but diplomatic and professional manner.” Doc. 151-8 at 2.
In April 2008, Thorncreek’s lenders foreclosed on Areas G and H. Doc. 157-9.
Discussion
I. Thorncreek’s Summary Judgment Motion
Thorncreek’s brief in support of its summary judgment motion, Doc. 144, cites to raw record materials rather than to its Local Rule 56.1(a)(3) statement, Doc. 141. It has long and repeatedly been held that this practice violates Local Rule 56.1. See Jacobeit v. Rich Twp. High Sch. Dist. 227,
A party moving for summary judgment cannot expect its motion to be granted if it fails in a significant respect to comply with the rules. Thorncreek’s motion accordingly is denied due to its violation of Local Rule 56.1. See Cichon v. Exelon Generation Co.,
II. The Village’s Summary Judgment Motion
The Village’s summary judgment papers comply with Local Rule 56.1 and thus will be addressed on the merits.
A. Equal Protection, §§ 1985 and 1986, and Illinois Civil Right Act Claims (Counts I, IV, V, VI, VIII)
Thorncreek alleges that by taking the actions described above, the Village violated Thomcreek’s right to equal protection under the Fourteenth Amendment of the United States Constitution and article I, § 2, of the Illinois Constitution; engaged in a conspiracy to deprive Thorncreek of its federal equal protection rights, in violation of 42 U.S.C. § 1985(3); wrongfully refused to prevent a § 1985 violation, in violation of 42 U.S.C. § 1986; and violated the Illinois Civil Rights Act of 2003 (“ICRA”), 740 ILCS 23/1 et seq. Doc. 17 at ¶¶ 127-144, 184-203, 208-212. The claims are considered in turn.
1. Fourteenth Amendment Equal Protection Claim
Typically, “an equal protection violation occurs when a regulation draws distinctions among people based on a person’s membership in a ‘suspect’ class. Suspect classes include race, alienage, and national origin.” Srail v. Vill. of Lisle,
In Village of Arlington Heights v. Metropolitan Housing Development Corporation,
Years earlier, in Triad Associates, Inc. v. Chicago Housing Authority,
In accord with this weight of authority, Thorncreek may pursue a race-based equal protection claim. This claim requires proof that the Village had a “racially discriminatory intent or purpose” to treat Thorncreek differently because its tenants were predominantly African American. City of Cuyahoga Falls v. Buckeye Cmty. Hope Found.,
In the equal protection section of its initial brief, the Village does not dispute that race-based equal protection claims are subject to strict scrutiny and does not contend that its actions survive strict scrutiny; rather, staking its defense on the premise that Thorncreek is limited to a class-of-one claim, the Village argues only that its actions had a rational basis. Doc. 156 at 22-35. Accordingly, the Village has forfeited for summary judgment purposes any argument that its actions could survive strict scrutiny. See Costello v. Grundon,
As noted above, Thorncreek also pursues a class-of-one equal protection claim. The class-of-one doctrine “recognizes that the Equal Protection Clause may give[] rise to a cause of action on behalf of a 'class of one’ where the plaintiff d[oes] not allege membership in a class or group if the plaintiff can show that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” D.B. ex rel. Kurtis B. v. Kopp,
The Village first argues that Thorncreek has failed to identify a “similarly situated” entity that received better treatment with respect to dwelling licenses and enforcement of the electricity ordinance. Doc. 156 at 21-22. Recognizing Thorncreek’s position that it was similarly situated to Autumn Ridge, the Village points to the “physical differences” between the two complexes, noting that Autumn Ridge consists of 80 townhomes and 304 apartment units in four mid-rise buildings, while Thorncreek consists of three complexes with 632 apartment units and no mid-rise buildings. Id. at 10, 22. The Village’s argument is unpersuasive. Thorncreek and Autumn Ridge are similarly situated in all material respects; they are both large complexes with hundreds of units, and they both are subject to the same electricity ordinance and other regulatory requirements. See Swanson v. City of Chetek,
The Village also argues that the record indisputably establishes that it had a rational basis for its decisions regarding Thorncreek. Doc. 156 at 22-27. The standard governing the “no rational basis” element of class-of-one equal protection claims remains in flux in this Circuit. In Del Marcelle v. Brown County Corp.,
Some members of the court thought the plaintiff should be required to plead and prove that the disparate treatment was motivated by personal ill will or other illegitimate purpose;' that is, a purpose unrelated to public duty. See id. [at 889] (Posner, J.) (plurality opinion) (writing for four members of the court). Others expressed the view that personal animus or other improper motive is not an element of the claim but just one way to prove that the defendant’s action lacked a rational basis. See id. at 913— 14 (Wood, J., dissenting) (writing for five members of the court). One member of the court concluded that motive or intent “has no role at all” in class-of-one litigation. See id. at 900 (Easterbrook, C.J., concurring in the judgment).
D.B. ex rel. Kurtis B.,
There is no need to choose sides here, as Thorncreek’s class-of-one claim survives summary judgment even under the most stringent standard (the one set forth in Judge Posner’s opinion) because the record would permit a reasonable jury to find that the Village’s disparate treatment of Thorncreek was motivated by personal ill will. Mick’s emails to the Trustees revealed his desire to make David Clapper “part” with his property, expressed his “disdain” for David Clapper, and stated that he “enjoyfs] shoving it up [Thorn-creek’s] ass.” This evidence suggests that personal animus grounded Mick’s and the Village’s adverse treatment of Thorncreek and David Clapper, and thus is sufficient to establish the “no rational basis” element of Thorncreek’s class-of-one claim. See Hanes v. Zurich,
Accordingly, the class-of-one claim survives summary judgment. In closing, it bears mention that the Village might have argued that Thorncreek’s class-of-one claim is fundamentally incompatible with its race-based equal protection claim and that Thorncreek cannot proceed with both. Cf. Castillo v. FBOP,
2. Section 1985 Claim
Section 1985(3) of Title 42 provides a cause of action to a party injured when “two or more persons .... conspire
The record would permit a reasonable jury to find that the second exception applies. Viewed with all factual disputes resolved and inferences drawn in Thorn-creek’s favor, the record shows that the Village was displeased with the number of African-Americans residents at Thorn-creek and responded with actions designed to disfavor Thorncreek. Those actions were committed and approved by numerous Village officials, including Mick, Kerestes, Ostenburg, the inspectors, and the Trustees. This fact pattern qualifies as an “extensive discriminatory conspiracy” that “permeat[ed] the ranks of the [Village’s] employees.” Ibid.-, see Doe 20 v. Bd. of Educ. of Cmty. Unit Sch. Dist. No. 5,
3. Section 1986 Claim
Section 1986 of Title 42 “creates a cause of action against a person that neglects or refuses to stop a conspiracy to violate the civil rights of a member of a protected class. An action under § 1986 only lies where a defendant has violated § 1985(3), which prohibits a conspiracy to interfere with one’s civil rights.” Malone v. Am. Friends Serv. Comm.,
The Village argues that because equal protection claims under the Illinois Constitution are governed by the same standard as federal equal protection claims, and because Thorncreek’s federal equal protection claims are meritless, summary judgment should be granted on the Thorncreek’s Illinois equal protection claims as well. Doc. 156 at 27. Illinois equal protection claims generally are governed by the same standard as federal equal protection claims, see Jarabe v. Indus. Comm’n,
5. ICRA Claim
The ICRA provides in relevant part that “[n]o unit of State, county, or local government in Illinois shall ... subject a person to discrimination ... on the grounds of that person’s race.” 740 ILCS 23/5(a)(1); see Jackson v. Cerpa,
The Village also argues that Thorncreek cannot pursue an ICRA claim because it is not a “person” within the meaning of the statute. Doc. 156 at 44. The Village states the argument without offering any support, and thus must be understood to have incorporated by reference the “standing” argument it made in opposition to Thorncreek’s race-based equal protection claim. That argument fails for the reasons set forth in Section II.A.1, supra.
B. Due Process and Takings Claims (Counts II, III, VII, IX)
Thorncreek also alleges that the Village’s use of its regulatory apparatus to interfere with Thorncreek’s use of its land and property violated the substantive and procedural due process guarantees of the Fourteenth Amendment of the United
In Williamson County, “the Supreme Court articulated a special ripeness doctrine for constitutional property rights claims which precludes federal courts from adjudicating land use disputes until: (1) the regulatory agency has had an opportunity to make a considered definitive decision, and (2) the property owner exhausts available state remedies for compensation.” Muscarello v. Ogle Cnty. Bd. of Comm’rs,
The applicability of the Williamson County doctrine to Thornereek’s takings claims is beyond any reasonable dispute. Thorncreek argues, however, that the doctrine does not apply to its due process claims because those claims “present genuine disputes as to whether the [Village] violated [Thorncreek’s] constitutional rights to follow the Village’s ordinances with respect to granting business licenses — a property interest.” Doc. 160 at 29. Thorncreek’s description of its due process claims is accurate; the Village is alleged to have wrongfully applied its ordinances against Thorncreek, with the result that Thorncreek has been hindered in its pursuit of its residential real estate business. Yet Thorncreek’s conclusion is wrong; its due process claim is precisely the sort of due process claim that falls within the scope of the Williamson County doctrine. See Unity Ventures v. Lake Cnty.,
Thorncreek also contends that Williamson County is inapposite because no “final decision” was made by the Trustees regarding its applications, particularly its application for a conditional use permit. Doc. 160 at 29. That argument fails as well. In River Park, the plaintiff argued that the defendant municipality would not give it a final decision on its zoning application.
Finally, Thorncreek contends that in Case 08 C 869 — where the Village sued Thorncreek first — Federal Rule of Civil Procedure 13(a) required Thorncreek to bring its due process and takings claims as compulsory counterclaims. Doc. 160 at 29-30, 32. Rule 13(a) provides that “[a] pleading must state as a counterclaim any claim that — at the time of its service — the pleader has against an opposing party if the claim: (A) arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim; and (B) does not require adding another party over whom the court cannot acquire jurisdiction.” Fed.R.Civ.P. 13(a). Even if Thorn-creek’s due process and takings claims in Case No. 08 C 869 were compulsory counterclaims, Williamson County defeats them. The Rules Enabling Act provides that the Rules “shall not ... modify any substantive right.” 28 U.S.C. § 2072(b). Williamson County interprets the Fifth Amendment, and its ripeness doctrine has been described by the Seventh Circuit as implicating Article Ill’s limits on the subject matter jurisdiction of the federal courts. See Flying J Inc. v. City of New Haven,
C. Monell Claims Against the Village
Thorncreek seeks to hold the Village liable for the alleged misconduct of its officials under the municipal liability doctrine of Monell v. Department of Social Services,
Although there was no explicit Village policy that only a certain proportion of African-Americans was acceptable within a given housing complex, the record allows the conclusion that there was implicit understanding in Village government that Thorncreek had too many African-Americans. See Thomas v. Cook Cnty. Sheriff’s Dep’t,
D. Defenses Asserted by the Individual Defendants
The Village asserts three defenses on behalf of the individual defendants, which are considered in turn.
1. Official Capacity Claims Against the Individual Defendants
First, the Village maintains that the official capacity suits against the individual defendants should be dismissed because they are redundant of the Monell claims against the Village. Doc. 156 at 39. The Village is correct. A suit against a municipal official in her official capacity is the equivalent to a suit against the municipality. See Kentucky v. Graham,
2. Absolute Legislative Immunity
Second, the Village contends that the Trustees and Ostenburg (the Village President) enjoy absolute immunity because their alleged conduct was undertaken in a legislative capacity. Doc. 156 at 39-40. (Absolute immunity is also sought for McGann, the Village Clerk, but she is sued in her official capacity only, Doc. 159 at ¶ 7, and the official capacity claims have been dismissed.) “[A]bsolute immunity shields a legislator’s conduct even when that conduct is based on improper motives. Absolute immunity, however, only applies to those legislators acting in their legislative capacity. Courts have granted absolute legislative immunity to legislators for various activities which include: (1) core legislative acts such as introducing, debating, and voting on legislation; (2) activities that could not give rise to liability without inquiry into legislative acts and the motives behind them; and (3) activities essential to facilitating or preventing the core legislative process.” Biblia Abierta v. Banks,
Applying these principles to this case, absolute legislative immunity attaches to the Trustees’ and Ostenburg’s involvement in the enactment of the electricity ordinance and other provisions of the Village code. See Biblia Abierta,
Absolute legislative immunity does not protect the Trustees or Ostenburg to the extent they are sued for their involvement in the discriminatory enforcement of the electricity ordinance or other Code provisions. See Rateree v. Rockett,
3. Qualified Immunity
Third, the Village argues that the individual defendants are entitled to qualified immunity. Doc. 156 at 40-42. Because the takings and due process claims have been dismissed, it is necessary to consider qualified immunity only as to the federal equal protection and §§ 1985 and 1986 claims. “The doctrine of qualified immunity protects government officials from liability for civil damages when their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
Stripped of its boilerplate, the Village’s entire discussion of qualified immunity consists of these two sentences, which track the two questions just referenced: “For reasons set forth within this memorandum of law, the Defendants maintain that the Plaintiffs have failed to show a violation of a constitutional right. Further, existing law for plaintiffs’ various constitutional claims is not clearly established with respect to the alleged wrongdoing in this case.” Doc. 156 at 41-42. The first sentence is wrong; as shown in Section II.A, supra, Thorncreek has adduced evidence sufficient to show that the Village violated its equal protection rights. The second sentence states a conclusion without providing reasoning or authority, so the Village’s argument on the “clearly established” prong of qualified immunity is forfeited. See Arlin-Golf, LLC v. Vill. of Arlington Heights,
Qualified immunity would have been denied even putting aside forfeiture. It has been settled law for decades that the Equal Protection Clause bars government action aimed at restricting the housing choices of racial minorities or targeting those who provide housing to racial minorities. See Adickes v. S.H. Kress & Co.,
For the foregoing reasons, Thorncreek’s summary judgment motion is denied and the Village’s summary judgment motion is granted in part and denied in part. All official capacity claims against the individual defendants are dismissed, as is the ICRA claim against the individual defendants. McGann is terminated as a party defendant because she has been sued only in her official capacity. The Trustees and Ostenburg are immune for any liability for their role in enacting municipal ordinances. Defendants are granted summary judgment on the state and federal due process and takings claims. Subject to the foregoing limitations, Thorncreek’s federal and state equal protection claims, conspiracy claims under 42 U.S.C. §§ 1985 and 1986, and ICRA claim will proceed to trial.