Magnuson v. City of Hickory Hills

• Decision Date: 16 January 1990
• Docket Number: No. 88 C 9815.,88 C 9815.
• Citation: 730 F. Supp. 1439
• Parties: Jay C. MAGNUSON and Margaret L. Magnuson, individually and on behalf of all other similarly situated, Plaintiffs, 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.
• Court: U.S. District Court — Northern District of Illinois

730 F. Supp. 1439

Jay C. MAGNUSON and Margaret L. Magnuson, individually and on behalf of all other similarly situated, Plaintiffs, 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.

No. 88 C 9815.

United States District Court, N.D. Illinois, E.D.

January 16, 1990.

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

Michael G. Cainkar, Chicago, Ill., Vincent Cainkar, Burbank, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Jay and Margaret Magnuson have filed this § 1983 claim against the City of Hickory Hills and certain municipal employees ("City").¹ In addition to seeking individual damages, the Magnusons attempt to certify a class of similarly situated plaintiffs. Currently pending are the Magnusons' motion for class certification and cross motions for summary judgment.

BACKGROUND

Prior to 1982, the Metropolitan Sanitary District of Greater Chicago discovered that the overloading of local sanitary sewer systems was threatening water supplies. The Sanitary District instructed the communities within its jurisdiction to take measures to abate the problem of excess infiltration of ground and storm water into the sewer system. In response to this mandate, the City of Hickory Hills instituted the program that has created the current dispute with the Magnusons.

Initially, the City inspected the homes in the community in an effort to locate those homes that had illegal connections to the sewer system. After these searches, the City identified 1200 homes which might have contained illegal connections. Included among this list were those homes which the City was unable to search.

On April 1, 1988, the City proceeded to mail notices to each of these 1200 homeowners. This "first notice" stated that the property had been identified as a source of illegal storm water. The notice listed potential sources and suggested methods of remedying defects. The notice also warned that court action and termination of water service could result if the home was not listed in compliance.

Those residents who did not schedule an inspection received a "second notice," which was mailed on June 22, 1988. This notice warned the resident that their property was still identified as a source of illegal storm water. The notice warned that legal action would be taken if corrections were not made or the home was not inspected. In addition, the notice contained an address to which the resident could write and request a hearing.

On August 26, 1988, the City mailed final notices to the residents of homes that were on the list of homes with possible illegal connections. This notice instructed the recipient that she could schedule a hearing if she believed she was in compliance. Again, the notice threatened that water service would be terminated if the residence was not listed in compliance by the deadline.

The Magnusons received each of these three notices. The Magnusons took no action after receiving the first two notices. After receiving the third notice, the Magnusons scheduled a compliance inspection. However, Barbara Magnuson subsequently canceled this appointment.

On November 8, 1988, a City employee affixed a sticker to the Magnusons' front door. This notice warned the Magnusons that their water service would be terminated unless a compliance inspection was scheduled by November 18, 1988. The Magnusons contacted the City and demanded the removal of this sticker; the Magnusons allege that a city employee damaged their door when the sticker was eventually removed.

The Magnusons scheduled a compliance inspection for November 16, but canceled this appointment. This action was filed on November 18, 1988.

On November 21, 1988, the City received a letter from the Magnusons' plumber. This letter stated that the sump pump violation at the Magnusons' home had been corrected. Accordingly, the City removed the Magnusons from the list of the homes that had illegal sources of storm water.

The Magnusons seek injunctive and declaratory relief, as well as compensatory and punitive damages. The Magnusons claim that the City's program violated several of their constitutional rights. Specifically, they claim that the City's program violated their 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.

DISCUSSION

A. Motion For Class Certification

The Magnusons seek to certify a class of:

All residents of City of Hickory Hills who have been threatened with water service termination, pursuant to the sewer rehabilitation program of the defendant City of Hickory Hills, and all those persons who shall in the future be subjected to similar threats under the defendants' current sewer rehabilitation program or any such program to be developed by the defendant City of Hickory Hills.

The Magnusons argue that this class is certifiable under Fed.R.Civ.P. 23(b)(2) because the City has acted on grounds generally applicable to the class, making final injunctive relief or corresponding declaratory relief appropriate with respect to the class as a whole. However, we need not reach the issue of whether the proposed class meets the requirements of Rule 23(b)(2) because the Magnusons have failed to establish the threshold requirements of Rule 23(a).

Rule 23(a) provides that a district court may only certify a class if the claims or defenses of the representative parties are typical of the claims or defenses of the class, and the representative parties will fairly and adequately protect the interests of the class. A class action can not be certified unless the named plaintiff has standing. Robinson v. City of Chicago, 868 F.2d 959, 968 (7th Cir.1989). Because the Magnusons lack standing to seek injunctive relief, we deny the motion for certification.

To invoke Article III jurisdiction, a plaintiff seeking injunctive relief must show that there is some immediate danger of a direct injury. Robinson, 868 F.2d at 966, citing City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). A plaintiff may seek injunctive relief only if he can demonstrate the threat of a future injury. Past exposure to illegal conduct is insufficient to establish a present case or controversy regarding injunctive relief. A past injury must be accompanied with continuing adverse effects. O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 675-676, 38 L.Ed.2d 674 (1974); Alvarez v. City of Chicago, 649 F.Supp. 43, 44 (N.D.Ill.1986). A party that can not demonstrate that an injunction will accomplish some tangible good in her favor has no standing to seek the injunction. Mann v. Hendrian, 871 F.2d 51 (7th Cir.1989).

The Magnusons lack standing to seek injunctive relief, as their claim is moot. Because their plumber completed the required repairs, the Magnusons have been removed from the list of homes with potential illegal connections. Therefore, they face no threat of future injury from the City. Moreover, the Magnusons have failed to demonstrate that any adverse effects remain from the past alleged illegal activity. Thus, an injunction would accomplish no tangible good in the Magnusons' favor, as they are in full compliance with the City's storm water regulations and face no threat of further action under the challenged program.

In an effort to preserve their standing, the Magnusons attempt to squeeze themselves into two exceptions to the mootness doctrine. First, they claim that the City's voluntary cessation of illegal activity does not moot their claim. Second, they assert that their claim is capable of repetition, yet evades review. However, a central element of both of these exceptions is that the party seeking to invoke the exception faces a reasonable expectation that the putatively illegal conduct will be repeated. Ragsdale v. Turnock, 841 F.2d 1358, 1365 (7th Cir.1988); County of L.A. v. Davis, 440 U.S. 625, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979); City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 102 S.Ct. 1070, 1074, n. 10, 71 L.Ed.2d 152 (1982); Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 1669, 75 L.Ed.2d 675 (1982); Alvarez, 649 F.Supp. at 46. However, because their home is in compliance, the Magnusons face no expectation of being threatened with water termination or any other action.

Furthermore, a party who claims that the voluntary cessation of government conduct does not deprive him of standing must demonstrate that the illegal practice has continuing adverse effects. Ragsdale, 841 F.2d at 1365; County of L.A. v. Davis, 99 S.Ct. at 1383. In this case, the City's program has no continuing adverse effects on the Magnusons. The Magnusons have been removed from the list of potential violators; they will no longer be contacted by the City in its administration of the sewer program. Therefore, the exception does not apply.

The Magnusons suggest that we should certify the class regardless of whether they have standing to bring the injunctive claim. They argue that their compensatory damage claims guarantee that they will vigorously protect the interests of the class. However, the Seventh Circuit has held that a class can not be certified by a representative who lacks standing to bring a claim for injunctive relief. Robinson, 868 F.2d at 968. Moreover, the Magnusons overlook the fact that under Fed.R.Civ.P. 23(b)(2), the class is certified for the purpose of securing injunctive or declaratory relief in favor of the class. Certainly, a representative who lacks standing to bring this type of claim does not have claims typical of the class as a whole. Thus, Rule 23(a) also precludes certification.

B. Individual Claims...