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CSWS, LLC v. Madigan

June 24, 2009


The opinion of the court was delivered by: Blanche M. Manning United States District Judge


This suit is the second chapter in the saga of plaintiff CSWS, LLC's effort to operate an adult entertainment facility in Bedford Park. CSWS first successfully challenged the constitutionality of Bedford Park's adult entertainment zoning ordinance and obtained a settlement that authorized it to open its establishment. CSWS LLC v. Village of Bedford Park, No. 05 C 2913 (N.D. Ill.) (Gettleman, J.). Heartened by the settlement, CSWS purchased a piece of property in Bedford Park and began construction.

The Illinois General Assembly then passed a law forbidding new adult entertainment establishments from opening if they are located within one mile of the boundaries of certain facilities, such as schools and cemeteries. 65 ILCS § 11-5-1.5. Unfortunately for CSWS, its establishment fell within the ambit of the new law, so Bedford Park declined to issue licenses and permits necessary to allow CSWS to proceed.

In response, CSWS sued Illinois Attorney General Lisa Madigan and Cook County State's Attorney Anita Alvarez in their official capacities. CSWS seeks a declaratory judgment finding that 65 ILCS § 5/11-5-1.5 is unconstitutional (Count I) and a permanent injunction preventing the defendants from enforcing 65 ILCS § 5/11-5-1.5 (Count II). Contending that they are the wrong defendants, Madigan and Alvarez filed motions to dismiss pursuant to Rule 12(b)(1) and Rule 12(b)(6), respectively. For the following reasons, their motions to dismiss are granted.

I. Madigan's Motion to Dismiss

According to CSWS, Madigan, the Illinois Attorney General, is a proper defendant because one of her duties is to enforce state laws. In response, Madigan asserts that CSWS lacks standing because she has never prosecuted or threatened to prosecute it. Alternatively, she contends that the claims against her are barred by the Eleventh Amendment.

A. Standard for a 12(b)(1) Motion to Dismiss

Madigan's Rule 12(b)(1) motion to dismiss based on CSWS's alleged lack of standing is based on legal arguments, so there are no contested jurisdictional facts at issue. For the purposes of Madigan's motion to dismiss, the court will thus consider whether the complaint includes allegations that show that "it is plausible, rather than merely speculative, that [it] is entitled to relief." Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008) (internal quotations and citations omitted).

B. Standing

Madigan contends that CSWS lacks standing to pursue claims against her, asserting that CSWS cannot claim that she has ever prosecuted or threatened to prosecute it under § 65/5-11-5-1.5. CSWS, on the other hand, contends that Madigan is a proper defendant because she is the Illinois Attorney General and as such, is responsible for enforcing Illinois laws.

To show that standing is proper, CSWS must first show that it suffered "an injury in fact, which is an invasion of a legally protected interest that is concrete and particularized and, thus, actual or imminent, not conjectural or hypothetical." Lee v. City of Chicago, 330 F.3d 456, 468 (7th Cir. 2003), citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). The parties focus on this aspect of standing. Madigan contends that CSWS has not suffered any injury attributable to her because she has not threatened to prosecute CSWS under § 65/5-11-5-1.5. CSWS, however, correctly notes that it did suffer an injury: the enactment of the allegedly unconstitutional statute. This caused Bedford Park to decline to issue permits and licenses, which in turn caused construction to grind to a halt.

The rub with this injury, from a standing perspective, is that CSWS has not alleged any connection between Madigan and § 65/5-11-5-1.5. This is problematic because besides injuryin-fact, another critical element of standing is the existence of a causal relationship between a plaintiff's injury and the challenged conduct that is sufficient to fairly link the injury to the defendant's actions. See id.; see also Erwin Chemerinsky, Federal Jurisdiction § 2.3 at 60 (5th ed. 2007) (the court may only adjudicate a claim if the plaintiff shows that it "has suffered or imminently will suffer an injury" that is "fairly traceable to the defendant's conduct").

This aspect of standing dooms CSWS's claims against Madigan (as well as Alvarez, although she does not challenge CSWS's standing to proceed against her) because the complaint contains no allegations that link the enactment of the allegedly unconstitutional statute (the relevant harm that caused Bedford Park to decline to issue permits and licenses to CSWS) to either of the currently named defendants, and the parties agree that Madigan has no present plans to prosecute CSWS. The court thus agrees that the complaint as currently drafted fails to show that CSWS has standing to proceed directly against Madigan. This conclusion is equally applicable to Alvarez.

In some respects, this ruling represents an exercise in futility, as it appears that Bedford Park is the entity that directly caused harm to CSWS. If it were to be the only defendant, Rule 5.1 of the Federal Rules of Civil Procedure -- which requires a plaintiff challenging the constitutionality of a state statute to notify the State Attorney General so she can decide whether to intervene -- would come into play. Fed. R. Civ. P. 5.1. This would likely bring Madigan back into this action, but not as a named defendant. The court will not ...

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