                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




        Central Austin Neighborhood Ass’n v. City of Chicago, 2013 IL App (1st) 123041




Appellate Court            CENTRAL AUSTIN NEIGHBORHOOD ASSOCIATION and
Caption                    AMERICAN CIVIL LIBERTIES UNION OF ILLINOIS, Plaintiffs-
                           Appellants, v. THE CITY OF CHICAGO, Defendant-Appellee.



District & No.             First District, Third Division
                           Docket No. 1-12-3041


Filed                      November 13, 2013


Held                       A complaint alleging that defendant city’s system of responding to 911
(Note: This syllabus       calls violated the Illinois Civil Rights Act by having a disparate impact
constitutes no part of     on African-American and Hispanic neighborhoods was improperly
the opinion of the court   dismissed on the ground that it raised only a nonjusticiable political
but has been prepared      question, since the Act provides sufficient standards to be applied by the
by the Reporter of         court in determining whether the city’s system for deploying emergency
Decisions for the          personnel justifies any disparate impact on African-American and
convenience of the         Hispanic neighborhoods, the complaint did not present a nonjusticiable
reader.)
                           political question and plaintiffs were entitled to discovery on the extent
                           of the alleged disparate impact of the city’s system and the justification
                           for that system.


Decision Under             Appeal from the Circuit Court of Cook County, No. 11-CH-37299; the
Review                     Hon. Neil H. Cohen, Judge, presiding.



Judgment                   Reversed and remanded.
Counsel on                  Sidley Austin LLP, of Chicago (Richard J. O’Brien, Eric S. Mattson, and
Appeal                      Alexis Rollins Dunton, of counsel), for appellant Central Austin
                            Neighborhood Association.

                            Roger Baldwin Foundation of ACLU, Inc., of Chicago (Harvey Grossman
                            and Karen Sheley, of counsel), for appellant American Civil Liberties
                            Union of Illinois.

                            Stephen R. Patton, Corporation Counsel, of Chicago (Benna Ruth
                            Solomon, Myriam Zreczny Kasper, and Andrew W. Worsek, Assistant
                            Corporation Counsel, of counsel), for appellee.


Panel                       JUSTICE NEVILLE delivered the judgment of the court, with opinion.
                            Justices Pucinski and Mason concurred in the judgment and opinion.




                                              OPINION

¶1          Two organizations whose members include African-Americans and Hispanics sued the
        City of Chicago (City), alleging a violation of the Illinois Civil Rights Act (Act) (740 ILCS
        23/5 (West 2012)), and seeking a change in the way the City responds to emergency calls to
        911. The organizations alleged that, on average, persons in neighborhoods populated mostly
        by African-Americans and Hispanics wait longer than persons in neighborhoods populated
        mostly by whites for police to arrive in response to a 911 call. The trial court granted the
        City’s motion to dismiss the complaint, holding that regardless of the extent of the systematic
        disparity in response times, because the complaint raised only a nonjusticiable political
        question, the complaint did not state a claim for which the court could grant the complainants
        relief. On this appeal, we hold that the political question doctrine does not divest a court of
        jurisdiction to address plaintiffs’ claim that the City’s allocation of resources to respond to
        911 calls results in a disparate impact on residents of police districts populated largely by
        African-Americans and Hispanics, and, therefore, the trial court should not have dismissed
        the complaint for failure to state a justiciable claim. Accordingly, we reverse the trial court’s
        judgment and remand for further proceedings on the complaint.

¶2                                         BACKGROUND
¶3          The Central Austin Neighborhood Association and the American Civil Liberties Union
        of Illinois sued the City, alleging that the City’s administration of responses to 911 calls
        violates the Act. The City filed a motion to dismiss the complaint under section 2-615 of the

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     Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2012)). The trial court granted the
     motion on grounds that the complaint raised only a nonjusticiable political question. The
     plaintiffs now appeal.
¶4        Due to the procedural posture of this case, we must accept as true all facts well-pleaded
     in the complaint. See Brogan v. Mitchell International, Inc., 181 Ill. 2d 178, 183 (1998).
     According to the complaint, the office of emergency management and communications
     (OEMC) answers 911 calls and dispatches emergency personnel, including Chicago police
     officers, to respond to the calls. The City authorizes OEMC to dispatch beat officers only
     from the police district where the call originated. When a police district no longer has any
     beat officers available for dispatch in response to a call, the district has radio assignments
     pending, which the parties refer to as a “RAP” situation. During a RAP situation, OEMC still
     answers 911 calls, but no officer responds to those calls until an officer becomes available.
     Districts that have more frequent RAP situations have greater delays in responding to 911
     calls. Districts populated mostly by white residents report fewer violent crimes and fewer 911
     calls per beat officer, and correspondingly lower response times to 911 calls. Districts
     populated mostly by African-American and Hispanic residents reported more violent crimes
     and more 911 calls per beat officer, more RAP situations, and higher response times to 911
     calls. Citing an article from the Chicago Sun Times, dated November 22, 2010, plaintiffs
     alleged that Town Hall, a majority white district, had 17 RAP situations between January
     2009 and October 2010, while Chicago Lawn, a district mostly populated by African-
     Americans and Hispanics, had 885 RAP situations in the same time period. Chicago Lawn
     had 3.61 violent crimes per beat officer, while Town Hall had 1.63 violent crimes per beat
     officer.
¶5        The complaint included further allegations that the disparate response times for responses
     to 911 calls, depending on the predominant racial makeup of the police districts, had
     prevailed in Chicago for 20 years. The plaintiffs sought a judgment declaring that the
     administration of the 911 system violated the Act and an order requiring the City to submit
     to the court a plan detailing how the City will “provide equal services in response to 911 calls
     to minority neighborhoods.”
¶6        Plaintiffs served discovery requests on the City. The court granted the City’s motion to
     stay discovery pending a decision on the City’s motion to dismiss the complaint. In the
     motion to dismiss, the City argued that the plaintiffs failed to allege a violation of the Act,
     that they failed to allege that they suffered harm from the alleged practices, and that they
     raised only a nonjusticiable political question. The trial court held that (1) the Illinois
     Constitution delegates to the City, and not to the court, the power to organize, fund and
     control the police force; (2) no judicially discoverable and manageable standards could guide
     a judicial resolution of the alleged problem; and (3) any court order in favor of the plaintiffs
     would inextricably involve the court in a policy determination of a kind clearly meant for
     nonjudicial discretion. Applying the political question standards enunciated in Baker v. Carr,
     369 U.S. 186, 217 (1962), the trial court found that the complaint raised only a political
     question, so the court dismissed the complaint. The plaintiffs now appeal.



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¶7                                             ANALYSIS
¶8         We review de novo the dismissal of a complaint under section 2-615 of the Code.
       Simpkins v. CSX Transportation, Inc., 2012 IL 110662, ¶ 13. The trial court should not
       dismiss the complaint unless the complaint clearly shows that the plaintiffs cannot prove any
       set of facts under the complaint that would entitle them to relief. Simpkins, 2012 IL 1100662,
       ¶ 13.
¶9         Plaintiffs seek relief under the Act, which provides:
                “(a) No unit of State, county, or local government in Illinois shall:
                    (1) exclude a person from participation in, deny a person the benefits of, or
                subject a person to discrimination under any program or activity on the grounds of
                that person’s race, color, national origin, or gender; or
                    (2) utilize criteria or methods of administration that have the effect of subjecting
                individuals to discrimination because of their race, color, national origin, or gender.
                (b) Any party aggrieved by conduct that violates subsection (a) may bring a civil
           lawsuit, in a federal district court or State circuit court, against the offending unit of
           government. Any State claim brought in federal district court shall be a supplemental
           claim to a federal claim. This lawsuit must be brought not later than 2 years after the
           violation of subsection (a). If the court finds that a violation of paragraph (1) or (2) of
           subsection (a) has occurred the court may award to the plaintiff actual damages. The
           court, as it deems appropriate, may grant as relief any permanent or preliminary negative
           or mandatory injunction, temporary restraining order, or other order.” 740 ILCS 23/5
           (West 2012).
¶ 10       Plaintiffs have alleged that the City, a unit of local government, uses a method of
       administering responses to 911 calls that has the effect of subjecting the residents of police
       districts populated mostly by African-Americans and Hispanics to longer waiting periods,
       on average, for responses to 911 calls. The complaint alleges a violation of the Act. 740
       ILCS 23/5 (West 2012). We look to cases concerning alleged violations of federal civil rights
       statutes to guide our interpretation of the Act. Zaderaka v. Illinois Human Rights Comm’n,
       131 Ill. 2d 172, 178-79 (1989); Trayling v. Board of Fire & Police Commissioners, 273 Ill.
       App. 3d 1, 11 (1995). If the court allows the suit to proceed, and plaintiffs can prove their
       allegations,
           “the burden shifts to the City to demonstrate that its policy or practice had ‘ “manifest
           relationship” ’ to a legitimate, non-discriminatory policy objective and was necessary to
           the attainment of that objective. [Citation.] If the City shows that its actions were
           justified, then the burden shifts back to Appellants to show ‘a viable alternative means’
           was available to achieve the legitimate policy objective without discriminatory effects.”
           Gallagher v. Magner, 619 F.3d 823, 834 (8th Cir. 2010) (quoting Darst-Webbe Tenant
           Ass’n Board v. St. Louis Housing Authority, 417 F.3d 898, 902-03 (8th Cir. 2005)).

¶ 11                                       Judicial Notice
¶ 12       The City asks us to take judicial notice of several documents, including academic studies


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       and reports by a variety of governmental bodies, that no party presented to the trial court.
       See, e.g., Fairness and Effectiveness in Policing: the Evidence (Wesley Skagen & Kathleen
       Frydl eds., 2004), available at http://www.nap.edu/catalog/10419.html); Dennis P.
       Rosenbaum & Cody Stephens, Reducing Public Violence and Homicide in Chicago:
       Strategies and Tactics of the Chicago Police Department (Center for Research in Law and
       Justice, 2005) (http://www.icjia.state.il.us/public/pdf/ResearchReports/Reducing
       PublicViolenceandHomicideinChicago.pdf). The City cites the reports as evidence that it has
       a sound basis for its methods for deploying police officers in response to 911 calls.
¶ 13       Courts may take judicial notice of facts proven by “immediate and accurate
       demonstration by resort to easily accessible sources of indisputable accuracy.” Vulcan
       Materials Co. v. Bee Construction, 96 Ill. 2d 159, 166 (1983). However, courts “ ‘will not
       take judicial notice of critical evidentiary material not presented in the court below, and this
       is especially true of evidence which may be significant in the proper determination of the
       issues between the parties.’ ” Vulcan Materials, 96 Ill. 2d at 166 (quoting Ashland Savings
       & Loan Ass’n v. Aetna Insurance Co., 18 Ill. App. 3d 70, 78 (1974)). This case resembles
       Korematsu v. United States, 584 F. Supp. 1406 (N.D. Cal. 1984), in which the court rejected
       the petitioner’s request that the court take judicial notice of facts found by a governmental
       commission. The City asks this court to take judicial notice of the substantive findings of
       governmental organizations and scholars on matters which the trial court may need to decide.
       The materials the City relies on go to the merits of plaintiffs’ claims and do not address the
       issue of whether a court has jurisdiction to resolve those claims. Moreover, the City’s
       discussion of the materials illustrates that they relate to the alleged justification for the City’s
       deployment of police personnel, an inherently factual issue that the courts should not resolve
       in the context of a motion to dismiss. At the pleading stage of the proceedings, we must not
       take judicial notice of the new materials the City presents on this appeal. See Vulcan
       Materials, 96 Ill. 2d at 166; Korematsu, 584 F. Supp. at 1415.
¶ 14       We note particularly that the materials presented address the issue of whether a
       legitimate, nondiscriminatory policy objective justifies the City’s methods for responding to
       911 calls. No court should reach the issue of justification for the City’s procedures unless the
       court finds that the complaint states a cause of action. See Gallagher, 619 F.3d at 834. If we
       find that the complaint survives the section 2-615 motion to dismiss, and therefore the City
       has grounds for presenting the cited materials on the issue of justification, the plaintiffs will
       have a right to discovery, so that they will have an opportunity to dispute the factual
       conclusions the City reaches on the basis of the reports and studies it cites. Ill. S. Ct. R.
       201(b)(1) (eff. Jan. 1, 2013). In effect, by presenting these documents in support of a section
       2-615 dismissal of the complaint, the City seeks to justify its procedures, without allowing
       the plaintiffs the opportunity to conduct discovery that could show the full scope of the
       disparate impact and counter the City’s evidence of justification. We will not take judicial
       notice of the materials the City cites, and we will confine our review to the issue of whether
       the complaint states a political question of the kind that leaves the City’s actions exempt
       from court review.




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¶ 15                                       Political Question
¶ 16       The United States Supreme Court, in Baker v. Carr, 369 U.S. 186, set guidelines for
       determining whether a case presents a nonjusticiable political question. In Baker, the
       plaintiffs challenged a statute that apportioned representation in the Tennessee legislature.
       The Baker Court held:
           “The nonjusticiability of a political question is primarily a function of the separation of
           powers. Much confusion results from the capacity of the ‘political question’ label to
           obscure the need for case-by-case inquiry. Deciding whether a matter has in any measure
           been committed by the Constitution to another branch of government, or whether the
           action of that branch exceeds whatever authority has been committed, is itself a delicate
           exercise in constitutional interpretation, and is a responsibility of this Court as ultimate
           interpreter of the Constitution. ***
                *** There are sweeping statements to the effect that all questions touching foreign
           relations are political questions. *** Yet it is error to suppose that every case or
           controversy which touches foreign relations lies beyond judicial cognizance. ***
                ***
                *** The question in a particular case may not seriously implicate considerations of
           finality ***. Further, clearly definable criteria for decision may be available. In such case
           the political question barrier falls away ***. ***
                                                  ***
                It is apparent that several formulations which vary slightly according to the settings
           in which the questions arise may describe a political question, although each has one or
           more elements which identify it as essentially a function of the separation of powers.
           Prominent on the surface of any case held to involve a political question is found a
           textually demonstrable constitutional commitment of the issue to a coordinate political
           department; or a lack of judicially discoverable and manageable standards for resolving
           it; or the impossibility of deciding without an initial policy determination of a kind
           clearly for nonjudicial discretion; or the impossibility of a court’s undertaking
           independent resolution without expressing lack of the respect due coordinate branches
           of government; or an unusual need for unquestioning adherence to a political decision
           already made; or the potentiality of embarrassment from multifarious pronouncements
           by various departments on one question.” Baker, 369 U.S. at 210-17.
¶ 17       Although the Tennessee legislature bore primary responsibility for apportioning
       legislative representatives to the state counties, the Baker court held that the courts had the
       power to review the legislature’s decision and declare the apportionment invalid. As the
       Court held in Gomillion v. Lightfoot, 364 U.S. 339, 347 (1960), “When a State exercises
       power wholly within the domain of state interest, it is insulated from federal judicial review.
       But such insulation is not carried over when state power is used as an instrument for
       circumventing a federally protected right.”
¶ 18       Illinois courts have adopted the reasoning of Baker. See Kluk v. Lang, 125 Ill. 2d 306,
       322 (1988). “The mere fact that political rights and questions are involved does not create
       immunity from judicial review.” Donovan v. Holzman, 8 Ill. 2d 87, 93 (1956), quoted in

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       Kluk, 125 Ill. 2d at 323. Our supreme court explained:
            “[T]he separation of powers principle has not been understood to mean a separation of
            functions between the three branches of government which is so ‘distinct as to have no
            connection or dependence ***; but its true meaning, both in theory and practice, is, that
            the whole power of two or more of these departments shall not be lodged in the same
            hands, whether of one or many. *** [T]here is *** a blending and admixture of different
            powers. This admixture in practice, so far as to give each department a constitutional
            control over the other, is considered, by the wisest statesmen, as essential in a free
            government ***.’ [Citation.] *** While this court cannot exercise legislative powers
            [citation], the judiciary has always had the right and duty to review legislative acts in
            light of the Constitution.” Rock v. Thompson, 85 Ill. 2d 410, 417-18 (1981) (quoting
            Field v. People, 3 Ill. 79, 83-84 (1839)).
¶ 19        Thus, the issue of whether a case presents a political question, immune from judicial
       review, depends on the particular question presented. Courts do not have authority to draw
       boundaries of school districts, but the courts can declare boundaries invalid if the boundaries
       deprive citizens of constitutional or statutorily protected rights. See Committee for
       Educational Rights v. Edgar, 174 Ill. 2d 1, 16 (1996). Courts lack sufficient guidelines to
       enforce a right to a “good” education, but the courts can enforce the right to a free education.
       Edgar, 174 Ill. 2d at 24-25. The Illinois Senate, and not the courts, bears responsibility for
       electing a senator as President of the Senate, but courts have jurisdiction to determine
       whether the Senate complied with its own rules when it purported to elect a President of the
       Senate. Rock, 85 Ill. 2d at 418-19.
¶ 20        Here, the trial court observed that the City has primary responsibility for deciding how
       to deploy police officers in response to 911 calls. But that allocation of primary responsibility
       does not immunize the City’s decisions from judicial review. See Rock, 85 Ill. 2d at 417-18.
       To paraphrase the Kluk court, the City must devise a policy for deploying law enforcement
       personnel, not decide the issue of whether the policy implemented violates the Act. The
       General Assembly, by enacting the Act, gave courts the power to declare that any unit of
       state, county or local government has adopted “methods of administration that have the effect
       of subjecting individuals to discrimination because of their race, color, national origin, or
       gender.” 740 ILCS 23/5(a) (West 2012). The General Assembly expressly empowered courts
       to “grant as relief any permanent or preliminary negative or mandatory injunction, temporary
       restraining order, or other order.” 740 ILCS 23/5(b) (West 2012). Under the first criterion
       listed in Baker, we find that Illinois made no “demonstrable constitutional commitment of
       the issue” presented by the plaintiffs’ complaint to a final, unreviewable determination by
       the City. Baker, 369 U.S. at 217.
¶ 21        The trial court also found that the courts lack manageable standards for determining how
       to deploy police officers in response to 911 calls. But the court may grant the plaintiffs relief,
       if the evidence warrants such relief, without determining how to deploy police officers. If the
       City proves unable to justify its administrative procedures for deploying police officers, the
       City will retain authority to devise procedures that have no unjustified discriminatory effects.
       The court would retain jurisdiction to review the City’s plan only to determine whether the
       City succeeded in adopting a plan that meets the requirements of the Act. See Gallagher, 619

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       F.3d 823.
¶ 22       In Gallagher, the plaintiffs alleged that a municipality aggressively enforced housing
       regulations, issuing some citations for violations that had not occurred and allowing owners
       inadequate time to comply with discovered violations. The enforcement practices caused
       landlords to close some buildings and raise rents on others, resulting in a shortage of
       affordable housing. Gallagher, 619 F.3d at 834. The burden of the shortage fell most heavily
       on African-Americans, who made up a disproportionate percentage of lower-income
       households in the municipality. Although the court lacked authority to tell the municipality
       how to enforce its housing code, the court found that the complaint stated a cause of action,
       and not a political question exempt from judicial review. Similarly, the court in Village of
       Woodbridge v. Board of Education of Community High School District 99, 403 Ill. App. 3d
       559, 571-72 (2010), held that a dispute between the village and the board over the village’s
       power to take land in an eminent domain proceeding did not present a political question
       immune from review, because the eminent domain statute provided “clear criteria for the
       court to utilize to resolve this case.”
¶ 23       Here, the Act provides sufficient standards for the court to apply to determine whether
       the City’s policies for deployment of police personnel justify any disparate impact on
       African-Americans and Hispanics in terms of response times to 911 calls. We find the case
       similar to federal cases in which courts found sufficient guidelines for determining whether
       governmental plans alleviate the disparate impacts of past practices. See Davis v. Board of
       School Commissioners, 402 U.S. 33, 37 (1971); Committee Concerning Community
       Improvement v. City of Modesto, 583 F.3d 690, 707-09 (9th Cir. 2009); Neighborhood Action
       Coalition v. City of Canton, 882 F.2d 1012 (6th Cir. 1989). Again, we find Baker helpful,
       as the Court there said, “Beyond noting that we have no cause at this stage to doubt the
       District Court will be able to fashion relief if violations of constitutional rights are found, it
       is improper now to consider what remedy would be most appropriate if appellants prevail at
       the trial.” Baker, 369 U.S. at 198. The Act provides standards courts can apply to decide
       whether administrative procedures create unjustified disparate impacts. See 740 ILCS 23/5
       (West 2012). The need for manageable standards does not warrant dismissal of this lawsuit.
¶ 24       The other guidelines presented in Baker similarly provide no grounds for dismissing the
       lawsuit. The only policy determination at issue here concerns the disparate impact of
       administrative procedures on African-Americans and Hispanics, and courts have the
       competence needed to decide issues of such impact and justification for that impact. A
       decision in favor of the plaintiffs would indicate no lack of respect for the City’s home rule
       powers, just as the Baker decision did not show a lack of respect for the Tennessee
       legislature, and the decision in Gallagher did not show a lack of respect for the city and its
       procedures for enforcing its housing code. See also Modesto, 583 F.3d at 707-09; Canton,
       882 F.2d 1012. We see no unusual need for unquestioning adherence to the City’s preferred
       methods for responding to 911 calls, and no potential for embarrassment from
       pronouncements by the City and the courts on the issue.
¶ 25       Following Baker, we find that the complaint does not present a nonjusticiable political
       question. Accordingly, we reverse the trial court’s judgment and remand for proceedings in
       accord with this order.

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¶ 26                                       CONCLUSION
¶ 27       In this appeal from the dismissal of the plaintiffs’ complaint for failure to state a claim
       on which the courts can grant relief, the City asked this court to take judicial notice of a
       number of studies that the City cites as justifying its methods for responding to 911 calls. We
       find the materials irrelevant to the issue of whether the complaint states a justiciable claim,
       and not appropriate for judicial notice. The City will have the opportunity to present the
       studies to the trial court on remand, if the trial court must decide whether the City has just
       reason for the administrative methods it adopted. But the plaintiffs have the right to
       discovery on the issue of the extent of the disparate impact of administrative procedures as
       well as justification for those procedures. Ill. S. Ct. R. 201(b)(1) (eff. Jan. 1, 2013).
¶ 28       Courts have the power to order appropriate relief for the unjustified disparate impact of
       a city’s administrative practices on certain racial and ethnic groups. No constitutional
       provision immunizes from judicial review the alleged disparate impact of the City’s
       administrative methods for responding to 911 calls on distinct racial groups. The Act
       establishes standards for courts to use when confronted with allegations of such disparate
       impact. Accordingly, because the complaint does not present a nonjusticiable political
       question, we reverse the trial court’s judgment and remand for further proceedings in accord
       with this order.

¶ 29      Reversed and remanded.




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