Cabrini Green Local Advisory Council et al v. Chicago Housing Authority et al
Filing
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MEMORANDUM Opinion and Order.Signed by the Honorable Marvin E. Aspen on 2/21/2014:Mailed notice(am)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CABRINI-GREEN LOCAL ADVISORY
COUNCIL, et al.,
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Plaintiffs,
v.
CHICAGO HOUSING AUTHORITY, et al.,
Defendants.
No. 13 cv 3642
Hon. Marvin E. Aspen
MEMORANDUM OPINION AND ORDER
MARVIN E. ASPEN, District Judge:
This case is related to Gautreaux, whose history is extensive and need not be reiterated in
full here. Gautreaux v. Chi. Hous. Auth., No. 66 c 1459, 2013 WL 5567771, at *1B2 (N.D. Ill.
Oct. 9, 2013). As background for purposes of the pending motion to intervene, the essential facts
are as follows.
In 1969, United States District Court Judge Austin entered a judgment in Gautreaux,
finding that the Chicago Housing Authority (ACHA@) had engaged in a pattern of racial
discrimination in selecting public housing sites. Gautreaux v. Chi. Hous. Auth., 296 F. Supp. 907
(N.D. Ill. 1969). Judge Austin ordered the parties to Aformulate a comprehensive plan to prohibit
the future use and to remedy the past effects of CHA=s unconstitutional site selection and tenant
assignment procedures.@ Id. at 914. For many years, this Court has presided over Gautreaux.
Pursuant to the remedial decree, we retain jurisdiction to enter orders involving the construction,
implementation, modification, or enforcement of the judgment. Over the decades, we have
modified the decree Aseveral times to reflect changes in neighborhoods, circumstances and
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community housing needs.@ Gautreaux v. Chi. Hous. Auth., 475 F.3d 845, 847 (7th Cir. 2007).
In 2000, we authorized revitalization of the Francis Cabrini Rowhouses (ACabrini-Green site@) as
part of the Near North Revitalizing Area, recognizing that the Cabrini-Green Local Advisory
Council (ALAC@) had interests related to the redevelopment of the Cabrini-Green site and that
decisions in Gautreaux might impair those interests. (Gautreaux, No. 66 C 1459, 9/12/2000
Order on Joint Motion of Plaintiffs and 9/12/2000 Order on CHA=s Motion to Approve Consent
Decree.) We therefore allowed LAC to intervene in Gautreaux as needed to protect its interests.
(See, e.g., Gautreaux, No. 66 C 1459, 9/12/2000 Order on CHA=s Motion to Approve Consent
Decree (granting motion to allow LAC to intervene without limitation).)
In this most recent 2013 case, LAC and current and former Rowhouse residents have
challenged CHA=s plan to redevelop the Cabrini-Green site as mixed-income housing. Plaintiffs
in this suit (ACabrini Plaintiffs@) specifically allege that anything less than 100 percent public
housing would significantly reduce the units available for public housing and Aviolate [CHA=s]
mandate to affirmatively further fair housing[.]@ (Cabrini Compl. && 5, 7.)
Presently before us is a motion to intervene filed by the plaintiffs in Gautreaux (Aproposed
intervenors@), who oppose Cabrini Plaintiffs= position and argue that the Cabrini-Green site should
remain mixed-income public housing. (Mem. at 1; Intervenors= Compl. & 8.) Because the relief
requested by Cabrini Plaintiffs Awould imperil…Gautreaux relief,@ proposed intervenors argue
that they have a right to intervene as defendants under Federal Rule of Civil Procedure 24(a)(2)
and in the alternative that we should allow permissive intervention pursuant to Rule 24(b).
(Mem. at 1B2.) Cabrini Plaintiffs request that we deny the motion to intervene without prejudice,
whereas CHA argues that we should dismiss Cabrini Plaintiffs= complaint and require Cabrini
Plaintiffs to file their claim as a proposed intervention petition in Gautreaux. (Cabrini Pl.=s Resp.
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at 1; CHA=s Resp. at 1.) Having already held that it was appropriate for us to accept reassignment
of the Cabrini case, we need not address CHA=s arguments here. See Gautreaux, 2013 WL
5567771, at *2B5. As was the case under the motion for reassignment, under the current motion
to intervene, it would be improper to dismiss the Cabrini complaint and force Cabrini Plaintiffs to
seek intervention in Gautreaux.
For the reasons discussed below, we grant proposed intervenors= motion to intervene as of
right in this case.
ANALYSIS
I. Intervention as of right
An applicant may intervene in an action as of right when he Aclaims an interest relating to
the property or transaction that is the subject of the action, and is so situated that disposing of the
action may as a practical matter impair or impede the movant=s ability to protect its interest, unless
existing parties adequately represent that interest.@ Fed. R. Civ. P. 24(a)(2). The Seventh Circuit
has applied this rule as a four-part test. Heartwood, Inc. v. U.S. Forest Serv., Inc., 316 F.3d 694,
700 (7th Cir. 2003). A party may intervene as of right if: 1) the application is timely; 2) the
applicant claims an interest relating to the property or transaction that is the subject of the action;
3) the applicant is so situated that the disposition of the action may impair or impede the
applicant=s ability to protect that interest; and 4) existing parties do not adequately represent the
applicant=s interests. Id. (citing Sokaogon Chippewa Cmty. v. Babbitt, 214 F.3d 941, 945B46 (7th
Cir. 2000)). The failure of any one of these factors requires denial of the petition to intervene.
Reich v. ABC/York-Estes Corp., 64 F.3d 316, 321 (7th Cir. 1995) (citations omitted).
AIn evaluating the motion to intervene, the district court must accept as true the
non-conclusory allegations of the motion and cross-complaint.@ Lake Inv. Dev. Grp., Inc. v. Egidi
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Dev. Grp., 715 F.2d 1256, 1258 (7th Cir. 1983) (citing Cen. States, Southeast and Southwest Areas
Health & Welfare Fund v. Old Sec. Life Ins. Co., 600 F.2d 671, 679 (7th Cir. 1979)). Although
intervention has a liberal pleading standard that encourages flexibility, it discourages motions that
Atotally ignore the rule.@ Shevlin v. Schewe, 809 F.2d 447, 450 (7th Cir. 1987); Gen. Ins. Co. of
Am. v. Clark Mali Corp., No. 08 C2787, 2010 WL 807433, at *8 (N.D. Ill. Mar. 10, 2010) (Where
the proposed intervenor failed to assert the timeliness of its motion, the court held that Aits motion
must be denied for that reason alone.@). Keeping in mind these standards, we find that the
proposed intervenors have satisfied each of the four Heartwood requirements.
A. Timeliness
The Seventh Circuit has described the timeliness factor as Aessentially a reasonableness
inquiry, requiring potential intervenors to be reasonably diligent in learning of a suit that might
affect their rights, and upon learning of such a suit, to act to intervene reasonably promptly.@
People Who Care v. Rockford Bd. of Educ., 68 F.3d 172, 175 (7th Cir. 1995). In determining
whether a motion to intervene is timely, courts consider four factors: A(1) the length of time the
intervenor knew or should have known of his interest in the case; (2) the prejudice caused to the
original parties by the delay; (3) the prejudice to the intervenor if the motion is denied; [and]
(4) any other unusual circumstances.@ Heartwood, 316 F.3d at 701.
Here, Cabrini Plaintiffs and CHA have not challenged proposed intervenors= arguments as
to their timely filing. Moreover, we find that the Heartwood factors strongly indicate that
proposed intervenors= motion to intervene is timely. Shortly following our order on CHA=s
motion to reassign Cabrini, proposed intervenors moved to intervene in this action. Gautreaux,
2013 WL 5567771. Because there was no delay before proposed intervenors filed the motion, the
original parties in this action will not be prejudiced. The added delay of allowing proposed
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intervenors to intervene in an action that is related to Gautreaux, a suit that is over forty-years-old,
would be minimal. See Heartwood, 316 F.3d at 701. We therefore conclude that the motion to
intervene is timely.
B. Substantial interest in the Cabrini litigation
The second requirement of Rule 24(a)(2) is that the applicant=s interest Amust relate to the
property or transaction that is the subject of the action.@ Heartwood, 316 F.3d at 700. In other
words, an intervenor=s interest Amust be significant, must be direct rather than contingent, and must
be based on a right which belongs to the proposed intervenor rather than to an existing party to the
suit.@ Wade v. Goldschmidt, 673 F.2d 182, 185 n.5 (7th Cir. 1982) (internal citations omitted);
Donaldson v. United States, 400 U.S. 517, 531, 91 S. Ct. 534, 542 (1971)). Here, proposed
intervenors= interest clearly concerns the same real property from which Cabrini Plaintiffs= interest
arises. We have previously analyzed the interrelatedness of the issues in Cabrini and Gautreaux,
stating that Athe question about the constitution of the Rowhouses is percolating in Gautreaux, as
much as it is in Cabrini-Green LAC.” (Gautreaux, 2013 WL 5567771, at *4.)
[Both cases] involve the same real property, subject to different revitalization plans
for different parcels. As a practical matter, the plan for the Rowhouses affects the
success of the plan for the rest of the Cabrini-Green redevelopment. The cases
also plainly “involve some of the same issues of fact.” Both address how CHA
should revitalize public housing at Cabrini-Green, including difficult questions
about what percentage of the proposed new and rehabilitated developments should
be reserved for public housing residents.
(Id. at *3.)
Cabrini Plaintiffs acknowledge that proposed intervenors “are clearly ‘interested’ in this
litigation,” but claim that this interest is not sufficiently direct, such that “they would have >a right
to maintain a claim for the relief sought.’” (Cabrini Pl.’s Resp. at 3 (citing Keith v. Daley, 764
F.2d 1265, 1268 (7th Cir. 1985).) We disagree. Both the actions taken and the statutory
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authority called into question in this case involve the proposed intervenors. The focus of the
ongoing litigation in both cases is whether CHA is complying with its obligations under the
Gautreaux judgment and remedial decree with regard to its administrative housing decisions.
(Intervenors= Compl.; Cabrini Pl.=s Compl.; Gautreaux, 2013 WL 5567771.) Determinations as
to CHA=s compliance directly affect not only Cabrini Plaintiffs, but also proposed intervenors. If
Cabrini Plaintiffs are granted the injunction they seek, requiring the Cabrini-Green site to consist
of 100 percent public housing, proposed intervenors= interest in the site consisting of
mixed-income housing would be directly and significantly impeded. This interest plainly relates
Ato the property or transaction which is the subject of the action.@ We therefore find that proposed
intervenors have a direct, legally protectable interest in the constitution of the Cabrini-Green site
that could be impaired or impeded by refusal to grant them intervention.
C. Proposed intervenors= interest would be impaired
AWith respect to the impairment requirement under Rule 24(a)(2), >[i]mpairment exists
when the decision of a legal question…would, as a practical matter, foreclose the rights of the
proposed intervenor in a subsequent proceeding.=@ Hanover Ins. Co. v. L & K Dev., 12 C 6617,
2013 WL 1283823, at *2 (N.D. Ill. Mar. 25, 2013) (quoting Shea v. Angulo, 19 F.3d 343, 347 (7th
Cir. 1994)). AThe possibility of foreclosure is measured by the standards of stare decisis.@
Hanover Ins. Co., 2013 WL 1283823, at *2 (quoting Am. Nat=l Bank and Trust Co. of Chi. v. City
of Chi., 865 F.2d 144, 148 (7th Cir. 1989)).
Proposed intervenors claim that their interest in the Cabrini-Green site as mixed-income
housing will be impaired by its absence from this suit. (Mem. at 4.)
Substantial accumulated evidence from other CHA sites suggests that the
rehabilitation of [the remaining 440 unrennovated units of] the Frances Cabrini
Rowhouses as a 100 percent public housing enclave within the economically
integrated communities…would have the effect of negatively and seriously
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impacting those residential communities and thereby imperiling the relief they have
provided for plaintiff class members.
(Id.) Proposed intervenors emphasize that ACabrini Plaintiffs= goal is precisely the outcome
Gautreaux Plaintiffs have sought to prevent since 2009[.]@ (Id.)
Cabrini Plaintiffs have suggested that proposed intervenors= injury is speculative, stating
that they Ahave not shown and cannot show that disposition of this action would impede or impair
their ability to protect [their] interest.@ (Cabrini Pl.=s Resp. at 7B8.) Cabrini Plaintiffs do not
offer facts, however, to support this assertion. We agree with proposed intervenors that if we
were to grant the Cabrini Plaintiffs= the injunction they seek, the proposed intervenors could not
secure the mixed-income development they seek. (Reply to Pl.=s Resp. at 2.) In other words, a
determination in favor of Cabrini Plaintiffs would have a stare decisis effect on proposed
intervenors, prejudicing any future action by them. Because proposed intervenors= interest in
securing the Cabrini-Green site as mixed-income housing would be impaired, proposed
intervenors have satisfied this Rule 24(a)(2) requirement.
D. Proposed intervenors= interest is not adequately represented
Lastly, we address the question of whether the existing parties are adequate representatives
of proposed intervenors= interest. This Rule 24(a)(2) requirement Ais satisfied if the applicant
shows that representation of his interest >may be= inadequate; and the burden of making that
showing should be treated as minimal.@
Lake Invest. Dev. Grp., 715 F.2d at 1261 (quoting
Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10, 92 S. Ct. 630, 636 n.10 (1972)).
Although proposed intervenors= burden is minimal, unsupported Aspeculation@ that an existing
party=s Aless than zealous@ representation of proposed intervenors= interest is insufficient for
purposes of intervention. Am. Nat=l Bank, 865 F.2d at 148 (denying intervention in part because
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proposed intervenor=s Aspeculation@ that city Corporation Counsel would be Aless than zealous@ in
defending the city ordinance was unsupported by the record).
Proposed intervenors argue that the existing parties do not adequately represent their
interests. (Mem. at 4B5.) Cabrini Plaintiffs, who oppose mixed-income redevelopment of the
Cabrini-Green site, plainly do not represent proposed intervenors= interests. Whether CHA
adequately represents proposed intervenors= interests, however, is a more nuanced issue since both
parties seek to have the Rowhouses developed as less than 100 percent public housing. (CHA
Ans. & 47; Intervenors= Compl. & 8.) Although proposed intervenors acknowledge that CHA=s
position as to the Cabrini-Green site currently coincides with their interest, A[n]othing assures
thatYtheir interest [will not] change.@ (Mem. at 4B5.) Cabrini Plaintiffs counter that if a conflict
with CHA does arise, proposed intervernors could Athen file a new motion to intervene.@ (Cabrini
Pl.=s Resp. at 9B10.) At this point in the litigation, they claim that the motion to intervene Ais, at
best, premature.@ (Id.)
Despite their current positions as to the constitution of the Rowhouses, we find that the
interests of proposed intervenors and CHA are not sufficiently aligned. Proposed intervenors=
interest is to secure mixed-income housing for Gautreaux families, whereas CHA=s interest is
broader in that it aims to complete its Plan for Transformation. We have seen over the years how
different those interests have been. CHA initially determined in 2001 that the Rowhouses had
Athe potential to become a mixed income and mixed finance property.@ (Intervenors= Compl. & 5
(citing CHA, FY2001 Annual Report, at 12).) In 2003, however, CHA decided to rehabilitate the
Rowhouses as 100 percent public housing. (Intervenors= Compl. & 5 (citing CHA, FY2003
Annual Report, at 20).) Then, in 2009, after rehabilitating approximately one-quarter of the
Rowhouses and after a conference with the court and the parties, CHA returned to its initial
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position as to the Rowhouses= potential to become mixed-income housing. (Intervenors= Compl.
& 6 (citing CHA, FY2008 Annual Report at 3B4).)
CHA=s interest is completing its Plan for Transformation. Its position as to the
constitution of the Rowhouses has changed over time and nothing guarantees that its current
position will not change again during the course of this pending litigation. It is therefore evident
that, at the very least, CHA=s representation of proposed intervenors= interest Amay be inadequate.@
See Lake Invest. Dev. Grp., 715 F.2d at 1261. Just because proposed intervenors may have a
Aclose working relationship with CHA@ in the Gautreaux case (Cabrini Pl.=s Resp. at 9), does not
guarantee that CHA will represent proposed intervenors= interests in this pending litigation.
Moreover, proposed intervenors are unrepresented on the Board of Commissioners that governs
CHA. (Mem. at 5.) Even if proposed intervenors were to have Aa continuing role in this
litigation akin to amicus curiae@ as Cabrini Plaintiffs suggest (id.), we believe this relationship
falls short of satisfying the Aadequate representation@ requirement under Rule 24(a)(2). Thus,
although CHA=s position on mixed-income housing may be aligned with proposed intervenors=
interest at this moment, these entities have an extensive litigious history that indicates they do not
always share the same fundamental interests.
Were the interests at issue in this case to merely concern different strategies or tactics, as
suggested by Cabrini Plaintiffs (Cabrini Pl.=s Resp. at 9), such differences would not create a
sufficient conflict to warrant intervention. B.H. v. McDonald, 49 F.3d 294, 297 (7th Cir. 1995)
(denying a motion to intervene where the conflict arose out of a party=s Aconsidered judgment@
about strategy). The difference between CHA=s and proposed intervenors= interests, however,
runs much deeper than mere strategies and tactics. For over forty years, proposed intervenors and
CHA have had an adversarial relationship in and out of court regarding the composition of housing
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in Chicago. We therefore find that proposed intervenors= interest in securing mixed-income
housing for the Cabrini-Green site is not adequately represented by CHA in this case.
For the foregoing reasons, we conclude that proposed intervenors have met all four
requirements under Rule 24(a)(2). Accordingly, we need not address permissive intervention.
II. Sufficiency of the complaint
In addition to Rule 24(a)(2), proposed intervenors must abide by Rule 24(c), which
Arequires that a motion to intervene be accompanied by >a pleading that sets out the claim or
defense for which intervention is sought.=@ N. Shore-Chicago Rehab. Inc. v. Vill. of Skokie, 93 C
1198, 1993 WL 356928, at *5 (N.D. Ill. Sept. 13, 1993) (quoting Fed. R. Civ. P. 24(c)). We
reiterate here that intervention has a liberal pleading standard. Shevlin, 809 F.2d at 450.
Additionally, in this district, failure to meet the requirements of Rule 24(c) may be merely
considered Aas one more factor that weighs against granting the motion [to intervene].@ N.
Shore-Chicago Rehab. Inc., 1993 WL 356928, at *5. As such, courts have allowed proposed
intervenors to stray from the strict pleading standards required for other federal pleadings. Id.
Cabrini Plaintiffs argue, however, that because proposed intervenors= complaint fails to
comply with the strict pleading requirement under Rule 8, it must fail Aas a matter of law@ and thus
Aalone warrants denial of the motion to intervene under both Rule 24(a) and (b).@ (Cabrini Pl.=s
Resp. at 13. According to Cabrini Plaintiffs, Aproposed intervenors= Complaint is completely
devoid of allegations that state a claim or defense, which independently violates Rule 24(c)[.]@
(Cabrini Pl.=s Resp. at 13.) Specifically, they state that the order sought by proposed
intervenorsCdenying the request to mandate CHA to redevelop the Rowhouses as 100 percent
public housingCAis neither a defense nor a claim available to an intervening defendant[.]@ (Id.)
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And even if the defense were available to the proposed intervenors, Cabrini Plaintiffs state that it
is Aspeculative and conclusory.@ (Id. at 14.)
We disagree. Proposed intervenors assert as a defense to the Cabrini Plaintiffs= complaint
Athat maintaining the Rowhouses as 100 percent public housingCwhich is what Cabrini Plaintiffs
seekCwould imperil [proposed intervenors=] Gautreaux relief.@ (Mem. at 1; Intervenors= Compl.
& 8; Reply to Pl.=s Resp. at 4B5.) This defense, despite Cabrini Plaintiffs= argument to the
contrary, goes beyond A[m]erely stating one has claims [or a defense] in common with the parties
to the suit[.]@ (See Cabrini Pl.=s Resp. at 13 (citing BPI Energy, Inc. v. Riches, No. 07-cv-186,
2009 WL 260889, at *1 (S.D. Ill. Feb. 4, 2009).) This case is unlike Patridge, in which the court
denied a motion to intervene where the applicant Afailed to file a pleading that sets forth its claims
or defenses or the relief it seeks.@ Patridge v. J.K. Harris Co., No. 05-2172, 2006 WL 1215189,
at *3 (C.D. Ill. May 5, 2006). In that case, the court stated that A[w]ithout that information, the
Court cannot consider whether intervention is proper.@ Here, proposed intervenors have
sufficiently informed us as to their defense and the relief they seek. Therefore, their Complaint
does not contain merely speculative and conclusory assertions, as suggested by Cabrini Plaintiffs.
(See Cabrini Pl.=s Resp. at 14.) Proposed intervenors abide by Rule 24(c)=s pleading standard by
maintaining that the Rowhouses as 100 percent public housing would imperil their Gautreaux
relief.
A motion to intervene as of right Ashould not be dismissed unless it appears to a certainty
that the intervenor is not entitled to relief under any set of facts which could be proved under the
complaint.@ Lake Inv. Dev. Grp., 715 F.2d at 1258. Here, it is evident that proposed intervenors
would be entitled to and may obtain relief if we were to find that the constitution of the
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Cabrini-Green site should be mixed-income. Having met the requirements of Rule 24(c), the
Complaint does not warrant a denial of intervention.
CONCLUSION
Cabrini Plaintiffs are essentially requesting us to make a finding that dissident class
members should be allowed to pursue a claim against the class Defendant that seeks the opposite
of what the dissident class seeks, while barring other members of the class from participation.
Denying proposed intervenors= motion would defeat the goals of the Cabrini reassignment case,
namely to efficiently and effectively litigate and dispose of the issues in a single proceeding.
Gautreaux, 2013 WL 5567771, at *5.
We find that, in accordance with Rule 24(a)(2), proposed intervenors have an interest
relating to the redevelopment of the Cabrini-Green site that is the subject of this action and are so
situated that the disposition of this action may, as a practical matter, impair or impede the proposed
intervenors= ability to protect their interest. They have also met the pleading standard under Rule
24(c). To protect the relief already provided and planned to be provided to them at and near the
Cabrini-Green site in the form of mixed-income housing, proposed intervenors have the right to
intervene. For the foregoing reasons, we grant proposed intervenors= motion to intervene.
It is so ordered.
__________________________
Marvin E. Aspen
United States District Judge
DATE: February 21, 2014
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