Chicago Joe's Tea Room, LLC et al v. The Village of Broadview, et al
Filing
661
MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 3/31/16Mailed notice(ca, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CHICAGO JOE’S TEA ROOM, LLC &
PERVIS CONWAY,
Plaintiffs,
v.
THE VILLAGE OF BROADVIEW,
ILLINOIS, HENRY VICENIK,
FITZGERALD MULLINS, JAMES
JOHNSON, JR., ROBERT PAYNE,
MICHAEL TYL, JOHN FERGUSON,
SAM D’ANZA, BEVERLY KEEHM,
JUDY ABRAHAM, BILLY DAVIS,
JUANITA HINTON JOHNSON,
MINNE REESE & RAY DONATO,
Defendants.
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07-cv-2680
Hon. John Z. Lee
MEMORANDUM OPINION AND ORDER
Plaintiffs Chicago Joe’s Tea Room, LLC, and Pervis Conway claim that
the Village of Broadview and the individual defendants violated the First
Amendment’s guarantee of freedom of expression by rejecting Chicago Joe’s
application for a permit to open a restaurant and nightclub featuring seminude dancing on a particular parcel of land in Broadview. Plaintiffs seek
declaratory and injunctive relief as well as damages. Broadview and all but
one of the individual defendants have filed motions for summary judgment,
and Plaintiffs have filed a cross motion for partial summary judgment. In
addition, Broadview has moved for reconsideration of an earlier order in this
1
case, and the individual defendants have moved for reconsideration of
another. Defendants have also moved to strike an expert report.
For the reasons given below, the Court grants Broadview’s motion for
reconsideration, grants its motion for summary judgment in part, grants the
individual defendants’ motion for summary judgment, and denies Plaintiffs’
motion for partial summary judgment. The other motions are stricken as
moot. What remains is to hold a trial on Plaintiffs’ damages for the
constitutional violation identified in the September 11, 2008, order granting
partial summary judgment in their favor.
I. Factual & Procedural History
This case has a nearly decade-long history that includes multiple
previous motions for summary judgment. The Court presumes familiarity
with the earlier orders issued and will discuss them only insofar as they are
relevant to the motions currently under consideration.
The basic facts of this case are that Chicago Joe’s Tea Room, LLC,
wanted to open a restaurant and nightclub that would feature semi-nude
dancing and serve alcohol in the Village of Broadview, a municipality in Cook
County, Illinois, west of Chicago off Interstate 290. Broadview’s SOF ¶¶ 46–
48 [ECF 589]; Pls.’ Resp. Br./Mem Supp. at 1 [ECF 608]. Chicago Joe’s
applied for a “special use” permit to allow it to open the proposed business on
a plot of land in an area of Broadview zoned “industrial.” Pls.’ SOF ¶¶ 19, 25,
33 [ECF 602]. A local zoning ordinance, § 10-7-4(D) (the “special-use
2
ordinance”), set criteria for the issuance of such permits. Broadview’s SOF
§ 73.
Broadview’s Zoning Board of Appeals held a public hearing about
Chicago Joe’s permit application on February 28, 2007. Pls.’ SOF §§ 37–38.
During the hearing, members of the Zoning Board questioned representatives
from Chicago Joe’s on various issues relating to the application. See generally
Broadview’s Ex. 29, Zoning Board Hearing Trans. One of those issues was
that the application sought permission to serve alcohol. Id. at 28–29, 31, 36–
37.
Near the close of the hearing, a member of the Zoning Board moved to
recommended that the Village Board deny Chicago Joe’s application because
an ordinance regulating adult businesses, § 10-4-6(D)(11) (the “adultbusiness ordinance”), prohibited alcohol from being served or consumed at
such businesses. Id. at 102–03. The motion was seconded and carried
unanimously. Id. The following week, on March 5, 2007, the Village Board
voted to adopt the Zoning Board’s recommendation. Pls.’ SOF §§ 39–40; Pls.’
Ex. Q, Minutes of the Village Board, at 3.
After denying Chicago Joe’s a permit, Broadview amended the adultbusiness ordinance to prohibit adult businesses within 1,000 feet of any
residential area. Broadview’s SOF § 67. This new restriction, if enforceable,
would have prevented Chicago Joe’s from opening at the proposed site.
3
On May 11, 2007, Chicago Joe’s and Pervis Conway, the owner of the
proposed site for the business, filed this lawsuit against Broadview, members
of the Zoning Board, and members of the Village Board. See Compl. [ECF 1.]
In Count I, Plaintiffs seek a declaratory judgment that the ordinance
prohibiting alcohol at adult establishments and the ordinance governing the
issuance of special-use permits violate the First Amendment’s free speech
clause on their face and as applied. In Count II, Plaintiffs seek to enjoin
Defendants from enforcing the ordinances in question and denying Chicago
Joe’s the sought-after permit. In Count III, Plaintiffs seek damages for the
purportedly unconstitutional denial of the permit application.
Broadview
moved
for
summary
judgment,
arguing
that
the
amendment to the adult-business ordinance creating the 1,000-foot ban
mooted Plaintiffs’ claims. Plaintiffs filed a cross-motion for partial summary
judgment. Judge Gottschall, to whom this case was previously assigned,
granted in part and denied in part both motions. See Chi. Joe’s Tea Room,
LLC v. Vill. of Broadview, No. 07 C 2680, 2008 WL 4287002, at *24 (N.D. Ill.
Sept. 11, 2008) (the “September 2008 opinion”).
Judge Gottschall first concluded that the new 1,000-foot restriction did
not moot Plaintiffs’ claims. Id. at **3–6. Relying on 754 Orange Ave., Inc. v.
City of W. Haven, Conn., 761 F.2d 105 (2d Cir. 1985)—a case involving a
similar zoning ordinance—she reasoned that a municipality cannot moot a
First Amendment claim by amending an ordinance in a way that, instead of
4
addressing the purported constitutional infirmity, creates new restrictions
intended to target the plaintiff. Id. In 754 Orange, the defendant
municipality had attempted to bar an adult bookstore that would have
otherwise been permitted by amending an ordinance to ban such businesses
from operating within 1,500 feet of a playground. 754 Orange Ave., 761 F.2d
at 109–10. The Second Circuit concluded that applying the amended
ordinance would be inequitable because the amendment’s sole purpose was to
target the plaintiff. Id. at 113. Based upon the reference in 754 Orange to
“vested rights,” see id., Judge Gottschall went on to conclude that Chicago
Joe’s had acquired a “vested right” under Illinois law to proceed under the
adult-business ordinance as it existed at the time that the permit application
was filed. Chi. Joe’s Tea Room, No. 07 C 2680, 2008 WL 4287002, at *4. She
explicitly confined this holding on vested rights to the adult-business
ordinance, explaining that the holding did not apply to the special-use
ordinance. Id. at *6 n.10.
Also in the September 2008 opinion, Judge Gottschall considered
Plaintiffs’ claim that the special-use ordinance was unconstitutional both as
applied and on its face. Rejecting the first argument, Judge Gottschall
explained that Broadview, by denying Chicago Joe’s a permit solely on the
5
basis of the alcohol ban in the adult-business ordinance, had not applied the
special-use ordinance to Chicago Joe’s at all. 1 Id. at *13.
As for the facial challenge to the ordinance, Judge Gottschall first
explained that Broadview had amended the special-use ordinance since
denying the permit and that only the current version could be considered in
deciding a facial challenge. Id. at *20. She then explained that Plaintiffs’
submissions were insufficient to decide whether the ordinance was facially
invalid. Id. at *21. 2
Judge Gottschall, however, did grant Plaintiffs’ cross-motion for
summary judgment “to the extent it seeks a declaration that § 10-4-6(D)(11)
[the alcohol ban] is unconstitutional.” See Chi. Joe’s Tea Room, No. 07 C
2680, 2008 WL 4287002, at *19. She explained that the ban was
Plaintiffs apparently believe that Judge Gottschall deferred ruling on this
issue. See Pls.’ Resp. Br./Mem. Supp. at 3, 37–39. The Court, however, understands
the ruling to be a rejection of the as-applied challenge on the merits.
1
In a later opinion, Judge Gottschall concluded that summary judgment could
not be granted as to the facial challenge due to the presence of disputed facts:
2
Here the court does not yet know how comprehensively
the language of § 10–4–7 applies to adult use
establishments in the Village because the parties
dispute how much land is available for such purposes
without a special use permit. … Accordingly, because
the standard of review turns on factual matters in
dispute or entirely outside the record, the court declines
to render judgment as a matter of law as to the facial
unconstitutionality of § 10–7–4.
Chi. Joe’s Tea Room, LLC v. Vill. of Broadview, No. 07 C 2680, 2009
WL 3151856, at *2 (N.D. Ill. Sept. 25, 2009).
6
unconstitutional because there was no evidence indicating that the ordinance
was primarily motivated by concerns about the “secondary effects” of mixing
alcohol with nude dancing. Id. Judge Gottschall acknowledged that, in
determining the primary concern of a law, “the court may consider a range of
materials including ‘the text of the ordinance, its preamble or express
legislative findings associated with it, and studies and information of which
legislators were clearly aware.’” Id. at *15 (citing Joelner v. Vill. of
Washington Park, Ill., 508 F.3d 427, 431 (7th Cir. 2007)). Broadview,
however, had made no reference to secondary effects in the ordinance nor put
forward any evidence that village officials were concerned with the secondary
effects of mixing nude dancing with alcohol consumption. Id. at ** 18–19.
Broadview responded to the September 2008 ruling by again amending
its ordinances. The village retained the ban on alcohol but added legislative
findings as to the secondary effects of mixing alcohol and nude dancing to
justify it. Broadview’s SOF ¶ 61. The village also eliminated the ban on adult
businesses within 1,000 feet of a residential area, the provision that Judge
Gottschall opined was targeted at Chicago Joe’s. Id. ¶ 62.
Meanwhile, Illinois law also changed. On August 16, 2007, about three
months after this lawsuit was commenced, the Illinois legislature amended
65 Ill. Comp. Stat. § 5/11-5-1.5, a law governing the placement of “adult
entertainment facilities.” The amendment was adopted roughly eight months
7
after Chicago Joe’s had submitted its permit application and five months
after Broadview had rejected it.
Under the amended version of § 5/11-5-1.5:
it is … prohibited to locate, construct, or operate a
new adult entertainment facility within one mile of
the property boundaries of any school, day care
center, cemetery, public park, forest preserve,
public housing, or place of religious worship located
in that area of Cook County outside of the City of
Chicago.
Id. This law effectively bans any new strip club from opening anywhere in
Broadview because the entirety of Broadview falls within its scope in one
fashion or another.
Defendants did not raise the enactment of § 5/11-5-1.5 during the first
round of summary judgment motions, but in March 2010, they filed a second
motion for summary judgment, arguing that Plaintiffs lacked standing to
bring their claims. The permit application, Defendants explained, was
deficient in many ways and would not have been approved under any
circumstances. Furthermore, they argued, § 5/11-5-1.5 mooted Plaintiffs’
claims for injunctive relief.
Judge Gottschall denied this motion. Chi. Joe’s Tea Room, LLC v. Vill.
of Broadview, 790 F. Supp. 2d 693 (N.D. Ill. 2011). She first disagreed that
Plaintiffs lacked standing, explaining that Chicago Joe’s might have been
able to remedy the identified deficiencies in its application. Id. at 695–96. She
then concluded, in a single sentence, that § 5/11-5-1.5 was inapplicable
8
because, “as the court explained in its September 2008 opinion, by making
significant investment in the property in reliance on the previous zoning law,
Chicago Joe’s acquired a vested right in the continuation of the law as it
existed at the time of its application in December 2006.” Id. at 696. 3
In the years since, the parties have litigated numerous additional
motions and completed discovery. Broadview and the individual defendants
(with one exception) have now moved for summary judgment, and Plaintiffs
have filed a cross-motion for partial summary judgment.
II. Analysis
A. Counts I and II – Declaratory and Injunctive Relief
Defendants argue once more that changes to Broadview’s ordinances
and the August 2007 amendment to 65 Ill. Comp. Stat. § 5/11-5-1.5 render
Plaintiffs’ claims for equitable relief moot. See Broadview’s Mem. Supp. at
11–18 [ECF 585.]. In furtherance of this argument, they ask the Court to
reconsider Judge Gottschall’s determination that Chicago Joe’s had acquired
a “vested right” to proceed under the law that was in place at the time that it
first submitted the permit application. Id. at 9–11; Broadview’s Mot.
Reconsider [ECF 592].
Under the law of the case doctrine, where a case has been transferred
from one judge to another, “in general, the successor judge is discouraged
Judge Gottschall did not explain how Plaintiffs came to have a vested right
vis-à-vis the enactment of § 5/11-5-1.5, when the September 2008 ruling was
confined to Broadview’s amendment of the adult-business ordinance and the use of
the amendment to target Chicago Joe’s.
3
9
from reconsidering the decision of the transferor judge.” Gilbert v. Illinois
State Bd. of Ed., 591 F.3d 896, 902 (7th Cir. 2010), citing Brengettcy v.
Horton, 423 F.3d 674, 680 (7th Cir. 2005). But “judges are significantly less
constrained by the law of the case doctrine with respect to jurisdictional
questions.” Gilbert, 591 F.3d at 903 (internal quotations and citations
omitted). This also is true where the successor judge is not presented with
“precisely the same question in precisely the same way,” Brengettcy, 423 F.3d
at 680, such as when “a renewed motion for summary judgment is supported
by additional evidentiary evidence,” Best v. Shell Oil Co., 107 F.3d 544, 547 (7
th Cir. 1997), or there has been a change in the law “that makes clear that
the earlier ruling was erroneous,” Santamarina v. Sears, Roebuck & Co., 466
F.3d 570, 572 (7th Cir. 2006).
In this case, the Court concludes for a number of reasons that it is
appropriate to revisit the question of whether Chicago Joe’s had a vested
right at the time that its permit was first filed. First, a substantial amount of
discovery has taken place since the prior rulings, and the Court now has a
more complete record to evaluate this issue. Second, the village has
attempted to remedy the constitutional deficiency that Judge Gottschall
identified in the ordinance banning alcohol at adult businesses, and the
1,000-foot ban that was the linchpin of her September 2008 order has been
repealed. Third, whether Chicago Joe’s can claim a vested right is critical to
the issue of jurisdiction, for without it (at least, in Broadview’s eyes), Chicago
10
Joe’s claims would be moot. See Jackson v. Clements, 796 F.3d 841, 843 (7th
Cir. 2015) (“In order for federal courts to retain jurisdiction over a case, there
must be an actual, ongoing controversy, and the absence of one renders a case
moot and deprives the court of subject matter jurisdiction.”). Finally, the
Court has a “strong and reasonable” conviction that, if Judge Gottschall had
had the benefit of the record now before this Court, she would have ruled
differently on the issue, and to stand by the prior ruling at this point would
be error. See Gilbert, 591 F.3d at 902.
In Illinois, the general rule is “that there is no vested right to the
continuation of a statute or ordinance.” 1350 Lake Shore Associates v. MazurBerg, 791 N.E.2d 60, 73 (Ill. App. Ct. 2003). However, there is an exception to
this rule when “there has been a substantial change of position, expenditures
or incurrence of obligations made in good faith by an innocent party under a
building permit or in reliance upon the probability of its issuance.” Id. In
such a case, courts have found that such a “party has a vested property right
and he may complete the construction and use of the premises for the
purposes originally authorized, irrespective of subsequent zoning or a change
in zoning classification.” Id. Although the doctrine is normally applied in
cases concerning building permits, the doctrine could presumably apply to
other types of permits, like the special use permit at issue here.
11
There is some question as to whether the Illinois vested interest
doctrine applies to federal claims such as those at issue here, 4 but assuming
that it does, the Court finds that Chicago Joe’s has failed to meet the
doctrine’s “good faith” requirement. To do so, Chicago Joe’s must have been
“attempting to comply with an ordinance as written.” City of Elgin v. All
Nations Worship Ctr., 860 N.E.2d 853, 857 (Ill. App. Ct. 2006); see Petra, 489
F.3d at 848 (vested rights doctrine only applies “if the use was authorized by
the zoning ordinance as it stood before the change”). Chicago Joe’s, however,
was seeking a permit to open an adult business that would serve alcohol, in
the face of Broadview’s adult-business ordinance that explicitly prohibited it.
Although “a party may have a right to assume that an ordinance is valid and
proceed accordingly, it has no corresponding right to do the contrary: to
assume that the ordinance is invalid and proceed in violation of it.” City of
Elgin, 860 N.E.2d at 858. 5 This failing is all the more evident in light of the
See Petra Presbyterian Church v. Village of Northbrook, 489 F.3d 846 (7th
Cir. 2007) (noting that the vested interest doctrine did not apply because “no claim
under state law is before us.”).
4
The transcript of the Zoning Board hearing in February 2007 confirms that
Chicago Joe’s knew it needed to circumvent the alcohol ban in order to obtain its
permit. Early in the hearing, the Board’s Chairman pointed out that the “petitioner
did specifically request in his application the sale of alcohol, which is specifically
prohibited in the adult use section.” Broadview’s Ex. 29, Zoning Board Hearing
Trans., at 28. When asked to respond to this concern later in the hearing, a lawyer
representing Chicago Joe’s stated:
5
That’s the reason for the special use permit to try to
overcome that obstacle. Being security is already going
to be in place, lighting in place, there’s really no reason.
I mean, usually the prohibition of alcohol is to reduce
12
village’s subsequent efforts to remedy the ordinance’s constitutional defect
and the Illinois legislature’s amendment of 65 Ill. Comp. Stat. § 5/11-5-1.5,
which will be discussed below. 6
Because the vested-rights doctrine is inapplicable here, the case is
governed by general mootness principles. And it is well established that a
municipality can render a First Amendment claim for injunctive relief moot
by changing the challenged law in a way that removes the purported
constitutional problem. See BBL, Inc. v. City of Angola, 809 F.3d 317, 324
(7th Cir. 2015) (holding that a zoning code amendment removing a particular
provision that regulated “sexually oriented businesses” mooted a First
Amendment challenge to the provision). Thus, the proper question is whether
Broadview has successfully cured the constitutional failings in the adult
crime and to keep those things from happening. But in
this case, I think we can overcome that.
Id. at 36–37.
The record before Judge Gottschall at the time of the September 2008 ruling
is worth noting. Once Chicago Joe’s challenged the constitutionality of the ordinance
banning alcohol sales at adult establishments, the village amended the ordinance to
prohibit such businesses within 1,000 feet of any residential area, effectively making
Chicago Joe’s project impossible. Judge Gottschall rightfully considered this a
blatant attempt to target Chicago Joe’s and, relying upon the reasoning in 754
Orange Ave, found that Chicago Joe’s had a vested interest to proceed despite the
1,000-foot ban. See Chi. Joe’s Tea Room, No. 07 C 2680, 2008 WL 4287002, at **2–6.
At the same time, the judge found the alcohol ban unconstitutional. Id. at *19. In
response, the village attempted to remedy the constitutional deficiency identified by
Judge Gottschall by adding legislative findings to support the alcohol ban in adult
establishments. It also deleted the 1,000 feet ban that had triggered Judge
Gottschall’s concern and gave rise to company’s vested interest. Neither issue,
however, was raised by the parties at that time, and Judge Gottschall did not have
occasion to address them before the case was transferred.
6
13
business ordinance noted by Judge Gottschall. The Court concludes that
it has.
A lengthy preamble to Broadview’s amended adult business ordinance
explains that the alcohol ban is aimed at secondary effects rather than the
suppression of expression. See Def.’s Ex. 12, Adult Business Ordinance, at 1–
4. When an ordinance is aimed at combating secondary effects associated
with speech, courts apply intermediate scrutiny to assess the ordinance’s
constitutionality. R.V.S., L.L.C. v. City of Rockford, 361 F.3d 402, 408 (7th
Cir. 2004).
Of course, “simply stating that an ordinance is designed to combat
secondary effects is insufficient to survive intermediate scrutiny. The
governmental interest of regulating secondary effects may only be upheld as
substantial if a connection can be made between the negative effects and the
regulated speech.” Id. Broadview has sought to make the required connection
by citing in the preamble studies showing negative secondary effects of
combining alcohol and nude dancing, which include increased crime, and by
citing previous cases upholding similar alcohol bans. See Def.’s Ex. 12, Adult
Business Ordinance, at 3.
Plaintiffs argue that Broadview nevertheless has failed to justify its
alcohol ban because the studies it cites were commissioned by other
municipalities. Pls.’ Resp. Br./Mem. Supp. at 14–15. But the Supreme Court
and the Seventh Circuit have expressly rejected this very argument. See City
14
of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 51–52 (1986) (“The First
Amendment does not require a city, before enacting such an ordinance, to
conduct new studies or produce evidence independent of that already
generated by other cities, so long as whatever evidence the city relies upon is
reasonably believed to be relevant to the problem that the city addresses.”);
Ben’s Bar, Inc. v. Vill. of Somerset, 316 F.3d 702, 725 (7th Cir. 2003)
(rejecting the proposition that a municipality must “conduct its own studies,
at the local level, to determine whether adverse secondary effects result when
liquor is served on the premises of adult entertainment establishments”).
As Judge Gottschall noted, the “burden on a municipality in adult use
zoning cases is slight: recitation of the precise purpose of the ordinance and a
few legislative findings on the link between crime and adult entertainment
establishments, a finding that the type of restriction imposed will ameliorate
the secondary effects, and maybe a citation or two to applicable case law.”
Chicago Joe’s Tea Room, No. 07 C 2680, 2008 WL 4287002, at *19; see also
City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 451 (2002) (“As a
general matter, courts should not be in the business of second-guessing factbound empirical assessments of city planners.”). The amended adult business
ordinance satisfies this burden.
Furthermore, Broadview contends that Plaintiffs’ challenge to the
alcohol ban is mooted by another change in law—a change that also moots
Plaintiffs’ challenge to the special-use ordinance. In August 2007, the Illinois
15
legislature amended 65 Ill. Comp. Stat. § 5/11-5-1.5, to prohibit the location,
construction, or operation of a new adult entertainment facility within a mile
of any school, day care center, cemetery, public park, forest preserve, public
housing or place of religious worship located in Cook County outside of
Chicago. This statute effectively bans any new adult entertainment business
from opening anywhere in Broadview. If applied here, Plaintiffs’ claims for
equitable relief are moot because the Court would not be able to grant any
meaningful relief by
declaring Broadview’s special-use
or adult-use
ordinances unconstitutional or by enjoining their application. See Gonzalez v.
Vill. of W. Milwaukee, 671 F.3d 649, 652 (7th Cir. 2012) (holding that claim
for declaratory relief challenging a Wisconsin’s concealed-carry permitting
regime was moot because plaintiff could no longer lawfully possess a firearm
under federal law); Cornucopia Inst. v. U.S. Dep’t of Agric., 560 F.3d 673, 676
(7th Cir. 2009) (“[D]eclaratory judgment is appropriate only when the court’s
ruling would have an impact on the parties.”); Dorel Juvenile Grp., Inc. v.
DiMartinis, 495 F.3d 500, 503 (7th Cir. 2007) (explaining that a claim for
injunctive relief is moot when court cannot grant “any meaningful relief”).
In response, Plaintiffs first point out that Judge Gottschall previously
ruled in March 2011 that § 5/11-5-1.5 did not moot their claims. Chicago
Joe’s, 790 F. Supp.2d at 696. But this was contingent upon Chicago Joe’s
vested interest in the continuation of the law as it existed at the time of its
16
application. For the reasons stated above, the Court now concludes that the
vested interest doctrine does not apply.
In addition, Plaintiffs argue that the Illinois statute does not preclude
their claims for equitable relief because a First Amendment claim cannot be
mooted by a change in law that fails to cure the asserted constitutional
problems. Pls.’ Resp. Br./Mem. Supp. at 11–14; see Smith v. Exec. Dir. of Ind.
War Memorials Comm’n, 742 F.3d 282, 287 (7th Cir. 2014) (explaining that a
case is not mooted by a policy change “if the policy change does not actually
correct the asserted constitutional problem”). But this principle does not save
Plaintiffs’ claims because the amendment to § 5/11-5-1.5 is not a change to
the purportedly unconstitutional ordinances being challenged in this case. Of
course, if the Illinois statute is itself unconstitutional, it should be struck
down, but Plaintiffs have not challenged the statute’s constitutionality in
their motion. 7
Plaintiffs
also
suggest
that
§ 5/11-5-1.5
cannot
be
applied
“retroactively” and so cannot be applied to Chicago Joe’s. But really there is
no question of retroactivity here. Chicago Joe’s applied for a permit, and
Broadview rejected the application. The Illinois legislature then amended the
statute, and under the amendment, “it is prohibited to locate, construct, or
Plaintiffs did offer this argument in response to a previous summary
judgment motion, see Pls.’ Resp. Br. (July 9, 2010) [ECF 207], but they do not raise it
here, nor did they seek to amend their complaint to include a challenge to this law.
In the current briefing, they suggest that Broadview’s local analog to the § 5/11-5-1.5
is unconstitutional, see Pls.’ Resp. Br./Mem. Supp. at 14 [ECF 608], but this quite
different from challenging the validity of the statute itself.
7
17
operate a new adult entertainment facility” in the specified area. Chicago
Joe’s proposed establishment did not open prior to the amendment, and the
new provision makes no exception for businesses that might have opened but
for a wrongful permit denial.
That said, if the village had granted Chicago Joe’s a permit back in
February 2007 (rather than denying it based on an unconstitutional
ordinance) and Chicago Joe’s had been able to construct and operate its
establishment prior to the amendment in August 2007 of § 5/11-5-1.5, then
Chicago Joe’s would not have come within the scope of the amendment at all.
Considering this scenario, it would seem somewhat inequitable to find now
that the revision to § 5/11-5-1.5 prohibits Chicago Joe’s from ever opening its
business. But the Court cannot simply disregard § 5/11-5-1.5. “A federal court
possesses broad powers to remedy constitutional violations, but these powers
are not boundless.” Al-Alamin v. Gramley, 926 F.2d 680, 685 (7th Cir. 1991).
And the Court finds no authority (nor have Plaintiffs cited any) for setting
aside an unchallenged state statute in order to remedy a constitutional
problem with a local ordinance (which, as noted, has since been remedied).
Because § 5/11-5-1.5 prohibits Chicago Joe’s from opening its adult
business at the proposed site, any declaratory or injunctive relief relating to
Broadview’s ordinances would be without effect. Plaintiffs’ equitable claims
in this case are thus moot and must be dismissed.
18
B. Count III – Damages Claim
The mootness of Plaintiffs’ equitable claims does not extend to their
claim for damages. And Plaintiffs are potentially entitled to damages for the
constitutional violation Judge Gottschall identified in her September 2008
opinion. See Chi. Joe’s, No. 07 C 2680, 2008 WL 4287002, at *19 (holding
unconstitutional the alcohol ban in Broadview’s adult-business ordinance,
which was the sole reason given for denying Chicago Joe’s a permit).
Both Broadview and “Certain Individual Defendants”—which is all but
one of them 8—have moved for summary judgment on Count III. Broadview’s
briefs, however, do not actually include any arguments about Plaintiffs’
damages claim. Accordingly, the Court denies Broadview’s motion as to that
claim.
In addition, the individual defendants argue that they are entitled to
qualified immunity from Plaintiffs’ claim for damages. See Certain Individual
Defendants’ Am. Mem. Supp. at 2–3 [ECF 594]. Government officials are
entitled to qualified immunity unless their conduct violated “‘clearly
established statutory or constitutional rights of which a reasonable person
would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The individual defendants
argue that they are entitled to qualified immunity in this case because it was
not clearly established when they rejected the Chicago Joe’s permit
Former Village President Henry Vicenik has not moved for summary
judgment.
8
19
application that the alcohol ban in the adult-business ordinance was
unconstitutional. Id.
Plaintiffs respond that whether the unconstitutionality of the alcohol
ban was clearly established is irrelevant, reasoning that the alcohol ban was
not the real reason for the permit denial. Pls.’ Resp. Br./Mem. Supp. at 40–
41. Instead, they contend that the evidence, “when viewed most favorably to
Plaintiffs, strongly indicates that the real reason the Board denied the
Application was that they did not want a strip club in the Village and that
the stated basis – the alcohol prohibition – was merely pretextual.” Id. at 41.
In support, Plaintiffs cite the testimony of a member of the Village Board who
admitted to voting against Chicago Joe’s because she finds strip clubs
“tasteless” and a statement from the former mayor that he was “against the
strip club.” Id. at 40–41; Pls.’ SOF ¶¶ 48–50; (Minnie Reese Dep.) at 45–47;
Pls.’ Ex. FF, Westchester Minutes. Plaintiffs go on to assert that “denying the
Application because one finds strip clubs to be tasteless is clearly
unconstitutional.” Pls.’ Resp. Br./Mem. Supp. at 41. They also argue that the
“second step in the qualified immunity analysis is an easy one here. There is
no question that at the time of the Application, nude dancing was a
constitutionally protected form of expression.” Id.
In the Seventh Circuit, “once a defendant claims qualified immunity,
the burden is on the plaintiff to show that the right claimed to have been
violated was clearly established.” Marshall v. Allen, 984 F.2d 787, 797 (7th
20
Cir. 1993). A “case directly on point is not required,” but “existing precedent
must have placed the statutory or constitutional question beyond debate.”
Humphries v. Milwaukee Cnty., 702 F.3d 1003, 1006 (7th Cir. 2012). And
courts must not “define clearly established law at a high level of generality.”
Williams v. Ind. State Police Dep’t, 797 F.3d 468, 475 (7th Cir. 2015).
Plaintiffs have not bothered to cite any legal authority whatsoever in
support of their argument that Defendants are not entitled to qualified
immunity. Nor have they attempted to define a clearly established right with
any specificity. The undeniable fact that nude dancing is a protected form of
expression is not enough to clearly establish that someone would be violating
a First Amendment right by officially relying on an applicable ordinance to
deny a permit while privately desiring to suppress expression. To be clear,
such right may have been clearly established at the time, but Plaintiffs have
failed to meet their burden on that question. See, e.g., Doe v. Vill. of Arlington
Heights, 782 F.3d 911, 915 (7th Cir. 2015) (concluding that defendant was
entitled to qualified immunity because plaintiff did not identify “any case
factually similar to this one that would have provided a reasonable officer
with notice that he had a constitutional duty”); Findlay v. Lendermon, 722
F.3d 895, 897 (7th Cir. 2013) (“Because Findlay has not carried his burden of
showing the violation of a clearly established right, Lendermon is entitled to
qualified immunity.”). The Court thus concludes that the individual
21
defendants who have moved for summary judgment are entitled to qualified
immunity.
III. Conclusion
For the reasons given, Broadview’s motion for reconsideration [ECF
591] is granted, and its motion for summary judgment [ECF 583] is granted
as to Counts I and II but denied as to Count III. Certain Individual
Defendants’ motion for summary judgment [ECF 594] is granted. Plaintiffs’
cross-motion for partial summary judgment [ECF 604] is denied. As a result
of
these
rulings,
a
motion
by
Certain
Individual
Defendants
for
reconsideration of a decision denying them absolute legislative and quasijudicial immunity [ECF 595] is now moot, as is a motion from Broadview to
strike an expert report [ECF 626]. The moot motions are stricken.
A hearing will be held on 4/28/16 at 9:15 a.m. to set deadlines for the
final pretrial order and motions in limine and to schedule the final pretrial
conference and trial. As far as Broadview is concerned, the trial will be on
damages only as discussed herein. For Defendant Vicenik—the one
individual defendant who did not move for summary judgment—the trial will
be on liability and damages under Count III.
SO ORDERED
ENTER: 3/31/16
___________________________________
JOHN Z. LEE
United States District Judge
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