McKenzie v. City of Chicago

• Decision Date: 04 August 1997
• Docket Number: No. 97-2624,97-2624
• Citation: 118 F.3d 552
• Parties: Keith McKENZIE, et al., Plaintiffs-Appellants, v. CITY OF CHICAGO, et al., Defendants-Appellants
• Court: U.S. Court of Appeals — Seventh Circuit

Page 552

118 F.3d 552

Keith McKENZIE, et al., Plaintiffs-Appellants, v. CITY OF CHICAGO, et al., Defendants-Appellants.

No. 97-2624.

United States Court of Appeals Seventh Circuit

Submitted July 9, 1997.

Decided July 14, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied Aug. 4, 1997.

Daniel A. Edelman (submitted), Michelle A. Weinberg, Edelman & Combs, Chicago, IL, for Plaintiffs-Appellees.

Susan S. Sher, Office of the corporation Counsel, Appeals Division, Chicago, IL, for Defendants-Appellants.

Before POSNER, Chief Judge, and EASTERBROOK and MANION, Circuit Judges.

EASTERBROOK, Chief Judge.

Illinois authorizes its municipalities to "demolish, repair, or enclose" residential buildings, one or two stories in height, that are "open and vacant" and "an immediate and continuing hazard to the community". 65 ILCS 5/11-31-1(e). Chicago adopted an ordinance taking advantage of this power. Municipal Code of Chicago § 13-9-010. The program, which the City calls the Fast Track, begins with an inspection. If the head of the program agrees with the building inspector that the property meets the criteria, the City sends a second inspector to verify. If the building still appears to be open and vacant, the second inspector posts a large, brightly colored notice about impending demolition. Notices are sent by certified mail to all owners of record (including mortgagees), and the City attempts to track down and mail notices to interested persons not of record, such as the beneficial owners of land trusts. Notices are published in a major newspaper. All of the notices give the owners 30 days to repair or enclose (board up) the buildings and warn that if the buildings remain open after that time they may be demolished without further notice. The mailed and published notices also tell the owners that they can obtain a hearing by filing suit in an appropriate court, and that a suit automatically blocks demolition until the judge decides whether the building meets the statutory criteria for demolition. When the time allowed for repairs or enclosure has expired, and if no suit has been filed, the City sends a third inspection team; if that team concludes that the building remains open and vacant, a demolition contract is let. Contractors are under instructions to verify that the building remains open and vacant before they wreck it. Between 200 and 1,000 buildings are leveled per year in Chicago under this program (the record assembled so far in this case contains estimates but not data).

Two persons whose buildings were demolished filed this suit under 42 U.S.C. § 1983 seeking an injunction against continuation of the Fast Track program. Neither of the original plaintiffs appears to have standing to seek prospective relief, because neither claims to own a building at risk of demolition in the future. See Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). The district judge permitted some other persons to intervene as plaintiffs. One of these, Honeywood Development Corp., is in the business of rehabilitating old buildings. Sometimes Honeywood owns (or co-owns) title during renovation, and some buildings in its inventory are at risk under the Fast Track program. At least once, Honeywood rehabilitated a building after the City hired a contractor to demolish it; the renovated building was bulldozed shortly after Honeywood finished its efforts. Because Honeywood has standing to seek prospective relief, we put the other plaintiffs out of mind. The scope of its claims is important to the extent of relief, however. Honeywood's stake concerns only those buildings in which it has a financial interest. Plaintiffs sought to broaden the case by serving as representatives of a class of all owners of residential, one- or two-story buildings in Chicago. To date, however, the judge has not acted on the motion for class certification.

After an evidentiary hearing, the judge issued a lengthy opinion and entered a preliminary injunction halting the operation of the Fast Track program. The injunction requires Chicago to

refrain from ordering, authorizing, putting out for bid, or otherwise pursuing any demolition through the Fast Track program, or in any other manner implementing Chicago Municipal Code § 13-9-010 or 65 ILCS 5/11-31-1(e), until further order of this Court. Any Fast Track demolitions that have already been authorized, bid upon, or that are otherwise currently in the hands of contractors must immediately be halted, and the authorizations or contracts suspended.

Two days later City asked the judge to stay this injunction pending appeal. After waiting seven weeks, the judge denied this motion. Now the City asks us to issue a stay pending appeal. We do more than that; we summarily reverse the injunction.

The fundamental problem with this injunction is that plaintiffs lack standing to seek--and the district court therefore lacks authority to grant--relief that benefits third parties. "[N]either declaratory nor injunctive relief can directly interfere with enforcement of contested statutes or ordinances except with respect to the particular federal plaintiffs". Doran v. Salem Inn, Inc., 422 U.S. 922, 931, 95 S.Ct. 2561, 2567, 45 L.Ed.2d 648 (1975). Because a class has not been certified, the only interests at stake are those of the named plaintiffs. Baxter v. Palmigiano, 425 U.S. 308, 310 n. 1, 96 S.Ct. 1551, 1554 n. 1, 47 L.Ed.2d 810 (1976). Some own properties that may be affected in the future by the Fast Track program, but their interests can be protected by an injunction that prevents the City from demolishing their properties. That is the point of Lyons: A wrong done to plaintiff in the past does not authorize prospective, class-wide relief unless a class has been certified. Why else bother with class actions? "[T]he scope of the injunctive relief ... is in large part determined by the class action question." Illinois Migrant Council v. Pilliod, 540 F.2d 1062, 1072 (7th Cir.1976). The district court wrote that it was appropriate to enjoin the entire program, despite the lack of class certification, in order to prevent the City from violating the Constitution. Opinion at 47 n. 22. This response does not meet the City's objection. ^* Instead it assumes an affirmative answer to the question at issue: whether a court may grant relief to non-parties. The right answer is no. Sometimes a judge may overhaul a statutory program without a class action; in reapportionment and school desegregation cases, for example, it is not possible to award effective relief to the plaintiffs without altering the rights of third parties. Plaintiffs in this case, however, can be protected by an injunction forbidding fast-track demolition of their properties.

As it happens, even such a limited order is unnecessary. Both the state statute and the municipal ordinance forbid demolition of any property once its owner has filed suit. The City believes that this suit, albeit under § 1983, activates that ban. The district judge did not conclude that plaintiffs' properties are at risk while the case is ongoing. So the statutes under attack themselves provide plaintiffs with what they seek: their parcels cannot be demolished until the court rules on the merits. Honeywood notes in its response to the City's motion that it has interests in many properties, and that the City may not know which they are. If so, Honeywood should tell the City what vacant buildings it owns. It is not an appropriate use of judicial power to issue an injunction that adds nothing to the protections plaintiffs already have or can obtain by taking rudimentary precautions, and therefore affects only the rights of non-parties.

Lest this seem too technical, and lest this case return like a yo-yo as soon as the district judge certifies a class, we add that a preliminary injunction is improvident under the traditional balancing approach. Let us start with the back end of the formula whether irreparable harm to the plaintiffs if an injunction is erroneously denied exceeds the irreparable harm to the defendant if an injunction is erroneously issued. Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 2119, 95 L.Ed.2d 724 (1987); Flower Cab Co. v. Petitte, 685 F.2d 192, 193-94 (7th Cir.1982). When issuing the injunction, the district court concluded that any loss to owners is necessarily irreparable, because "the uniqueness of land is 'settled beyond the need for citation' " (opinion at 44, quoting from United Church of the Medical Center v. Medical Center Commission, 689 F.2d 693, 701 (7th Cir.1982)). Land may be unique, and injunctions to resolve ownership disputes about real property therefore may be appropriate, but this principle of state law is not a good reason to enjoin the operation of a state law. Illinois may if it wants decide to substitute cash for real property. States condemn and pay for land all the time; the Takings Clause of the fifth amendment supposes that money damages are a constitutionally adequate substitute for real property. If Chicago errs and razes a building without proper notice, or wrecks a structure that does not fit the terms of the law, it opens itself to an inverse condemnation action. Money will compensate the owner. It is not as if the buildings are the only lodgings of their owners: the Fast Track program deals in uninhabited edifices. Honeywood, the principal plaintiff, renovates run-down properties for profit, not for aesthetic delight; money is a perfect substitute for property to such a corporation. The district judge wrote of "the emotional repercussions of losing what at one time may have been the family home." Opinion at 44. But Honeywood does not experience emotions, and families that have moved to other dwellings lack any legal interest in preventing a city from treating empty shells as what they are. "Emotional repercussions" would not prevent Chicago from condemning the shells, paying the market price,...