Magnuson v. City of Hickory Hills

• Decision Date: 29 May 1991
• Docket Number: No. 90-1370,90-1370
• Citation: 933 F.2d 562
• Parties: Jay C. MAGNUSON and Margaret L. Magnuson, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. The CITY OF HICKORY HILLS, a municipal corporation; Vydas Juskelis, individually and in his official capacity as Director of Public Works and Superintendent of the Sewer Department of the City of Hickory Hills; and Raymond Kay, in his official capacity as Mayor of the City of Hickory Hills, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 562

933 F.2d 562

Jay C. MAGNUSON and Margaret L. Magnuson, individually and on behalf of all others similarly situated Plaintiffs-Appellants, v. The CITY OF HICKORY HILLS, a municipal corporation; Vydas Juskelis, individually and in his official capacity as Director of Public Works and Superintendent of the Sewer Department of the City of Hickory Hills; and Raymond Kay in his official capacity as Mayor of the City of Hickory Hills, Defendants-Appellees.

No. 90-1370.

United States Court of Appeals Seventh Circuit.

Argued Nov. 7, 1990.

Decided May 29, 1991.

Joel D. Berger, Chicago, Ill., for plaintiffs-appellants.

Michael G. Cainkar, Vincent Cainkar, Chicago, Ill., for defendants-appellees.

Before BAUER, Chief Judge, and POSNER, and RIPPLE, Circuit Judges.

BAUER, Chief Judge.

"And Noah he often said to his wife when he sat down to dine,

I don't care where the water goes if it doesn't get into the wine."

G.K. Chesterton, Wine and Water

It didn't matter much to Noah, but Hickory Hills, Illinois, cares very much where the water goes. The Chicago suburb maintains two separate sewer systems, one for storm water and the other for sanitary waste. Residents having homes with basements, half-basements, crawl spaces, and overhead sewers are required to install two sump pumps: one to handle sanitary waste and another to collect and divert storm water coming from gutters, window wells, floor drains, and drain tiles. Without the additional pump, storm water from these parts of the house flows into the sanitary waste sewer system, causing back-ups and flooding. Despite an ordinance banning the connection of "storm water" sump pumps to the sanitary sewer system, the City still had a problem with property owners whose illegal hook-ups posed a potential flooding hazard.

In addition to flood prevention, Hickory Hills had another reason for wanting to pull the plug on sump pump violators. Pursuant to The Clean Water Act of 1972, 33 U.S.C. Secs. 1251-1387, the Metropolitan Sanitary District of Greater Chicago ("MSD") (now called the Metropolitan Water Reclamation District of Greater Chicago) enacted comprehensive legislation requiring all municipalities under its jurisdiction (including Hickory Hills) to make deliberate efforts to eradicate the overloading of local sanitary sewer systems. To effectuate this goal, the MSD sued towns who failed to undertake or complete a sewer repair program. In an effort to comply with the MSD's mandate, Hickory Hills adopted a sewer rehabilitation program to abate the hazards caused by the infiltration of storm and ground water into the sanitary sewer system. Part of the City's strategy was to institute house-to-house inspections to "flush out" potential sources of illegal discharge into the sanitary sewer system.

On April 1 (all these events occurred in 1988), the Hickory Hills Department of Public Works mailed approximately 1200 letters to homeowners informing them that they had been identified as sources of illegal storm or ground water infiltration into the City's sanitary sewer system. The letter urged these property owners to correct all gutter/downspouts and sump pump violations. They were advised to come to the Department to pick up a free permit to make the required corrections and a list of approved, bonded plumbing contractors. In bold print, the letter stated that, "after July 1, 1988, any property owner not correcting violations will receive a final notice warning you that the City will go to court to enforce its ordinances and levy a fine against you and that the City will shut off water service to your property."

As part of the inspection program, Hickory Hills checked the home of Jay C. and Margaret L. Magnuson for possible sump pump violations. According to the Magnusons, they were told that their home passed muster, so when the April 1 warning letter came to their door, they ignored it. The City sent out a "Second Violations Notice--Water Termination Service Notice" on June 27. This letter warned,

If you ignore this letter, if you fail to have an inspection for property which is in compliance, or if you fail to make the required corrections, your water service will be terminated on or after September 1, 1988. By law the City is not required to serve any further notice on you prior to termination of water service. If you feel that the City has made a mistake, or if there are mitigating circumstances which make compliance impossible by September 1, 1988, you have the right to request a hearing before September 1, 1988 by sending a written letter to the Department of Public Water Works....

Again, the Magnusons made no attempt to contact the City or request a hearing. The City mailed yet another notice on August 26. It essentially repeated the information contained in the prior notices. As they did twice before, the Magnusons received the notice, ignored it, and failed to make any attempt to contact the City to refute the charge that they were in violation of the sewer rehabilitation program.

Shortly after they received the third notice, the Magnusons had other, unrelated plumbing repairs performed on their home. In light of the fact that they were about to have their water service terminated, the Magnusons asked the plumber to inspect their home and make any repairs necessary for compliance with the sewer rehabilitation program. The Magnusons then contacted the City and scheduled a compliance inspection for September 23, which they later canceled. On November 8, the City affixed a water termination notice to the Magnusons' front door. City workers scraped it off two days later. Subsequently, the Magnusons canceled a second compliance inspection of their home that they had scheduled for November 16. They still feared that they could have their water shut off, so they filed suit on November 18 to obtain a temporary restraining order. On November 21, the plumber who had performed repairs on the Magnuson home notified Hickory Hills that the residence complied with the sewer rehabilitation program. The City took the Magnusons off the list of residents who were under threat of having their water cut off as a result of having an illegal source of storm water infiltration into the sanitary sewer system. The Magnusons never again were threatened with the termination of their water service pursuant to the sewer rehabilitation program.

Nevertheless, they filed a claim under 42 U.S.C. Sec. 1983 in federal district court against the City of Hickory Hills, its mayor, and the director of the sewer department (collectively the "City"). The complaint alleged that the City had violated the Magnusons' fourth amendment right to be free from unreasonable searches and seizures, their procedural due process rights under the fifth, ninth and fourteenth amendments, and their right to substantive due process. The Magnusons sought injunctive and declaratory relief as well as compensatory and punitive damages. In addition, they sought to certify a class of similarly situated plaintiffs. Both sides filed motions for summary judgment. The district court denied the Magnusons' motion for class certification, dismissed their claims for injunctive and declaratory relief as moot, and granted the City's motion for summary judgment. Magnuson v. City of Hickory Hills, 730 F.Supp. 1439, 1444 (N.D.Ill.1990). It is from that judgment that the Magnusons now appeal. As with all summary judgment determinations, we review the matter de novo to determine whether the record as a whole establishes that the defendants were entitled to judgment as a matter of law. See, e.g., Dieckhoff v. Severson, 915 F.2d 1145, 1148 (7th Cir.1990).

The district court held that, because the Magnusons no longer were under the threat of having their water service terminated, their case was, so to speak, down the tubes. The Magnusons disagree that the matter was mooted by their eventual compliance with the sewer rehabilitation program. Describing the City's conduct as just the "first wave," they argue that, even though the City may not send them a threatening notice ever again, it will continue to send out intimidating notices to gain entry into the homes of other Hickory Hills residents.

The fact that the City voluntarily has stopped sending the Magnusons threatening notices does not by itself moot the controversy and deprive us of the power to determine the legality of the practice. See City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 1074-75, 71 L.Ed.2d 152 (1982). If so, then any Sec. 1983 defendant voluntarily could cease a challenged practice to thwart the lawsuit, and then return to old tricks once the coast is clear. See United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953). When the defendants are public officials, however, we place greater stock in their acts of self-correction, so long as they appear genuine. Ragsdale v. Turnock, 841 F.2d 1358, 1365 (7th Cir.1988), later proceeding, 734 F.Supp. 1457 (N.D.Ill.1990). The crucial inquiry is "whether there has been complete discontinuance, whether effects continue after discontinuance, and whether there is any other reason that justifies decision and relief." C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure: Jurisdiction 2d Sec. 3533.6, at 350.

With these principles in mind, we conclude that the Magnusons' challenge to Hickory Hills' sewer rehabilitation program is indeed moot. There is no evidence to show that the Magnusons have a reasonable expectation that the City will repeat its purportedly illegal actions, see Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348-49, 46 L.Ed.2d 350 (1975), or that they are suffering some residual ill effect from the (now-abated) threat that their water service may be terminated. See County of Los Angeles v. Davis, 440 U.S. 625, 633, 99 S.Ct. 1379, 1384, 59 L.Ed.2d 642 (1979). Rather, the record indicates that they face no future...