Plaintiffs contend there was no evidence in the record to support that decision. On April |, 2002,
the Illinois State Liquor Commission affirmed the revocation. Plaintiffs sought review of the
administrative proceedings in the Circuit Court of Cook County, where that court reversed the
Illinois Liquor Control Commission’s decision and reinstated plaintiffs’ liquor license on
October 19, 2002. Defendants now represent that the Liquor Commission and Welch appealed
the Circuit Court’s decision to the Ilinois Appellate Court. At this time, none of the partics
represents that the JIlinois Appellate Court has ruled on the merits of this appeal.

DISCUSSION
A. Welch’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) challenges the
sufficiency of the complaint for failure to state a claim upon which relief may be granted.
General Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7* Cir. 1997).
Dismissal is appropriate only if it appears beyond a doubt that the plaintiffs can prove no set of
facts in support of their claim that would entitle them to relief. Conley v. Gibson, 355 US. 41,
45-46 (1957); Sanville v. McCaughtry, 266 F.3d 724, 732 (7" Cir. 2001). In ruling on a motion
to dismiss, the court accepts as true all well-pleaded facts alleged in the complaint, and it draws
all reasonable inferences from those facts in the plaintiffs’ favor. Dixon v. Page, 291 F.3d 485,
486 (7" Cir. 2002); Jackson v. E.J. Brach Corp., 176 F.3d 971, 977 (7° Cir. 1999).

Welch argues that he is entitled to absolute immunity based on plaintiffs’ allegations in

their federal and state claims. With respect to plaintiffs’ federal claims,’ Welch cites the well-

25 an additional matter, the court recognizes that plaintiffs initially allege that they sue Welch
“individually,” from which the court infers that plaintiffs suc Welch in his individual capacity under § 1983. They,
however, apparently seek to hold Welch liable in his official capacity based on their allegations that defendants

4



Although the court may, sua sponte, abstain in an appropriate case,° it finds no reason to do so in

this case. Thus, the court will deny defendants’ motion to stay this lawsuit.

ORDER
Wherefore, for the reasons set forth above, the court grants in part and denies in part
Welch’s motion to dismiss [#14]. The court dismisses Counts 1, II and III in part against Welch
where plaintiffs seek to hold Welch liable as local liquor commissioner and in his official
capacity. The court dismisses Counts IV, V and VT in thcir cntirety against Welch. Welch is
directed to file an answer to plaintiffs’ amended complaint within twenty (20) days of the date of
this order, Furthermore, the court denics defendants’ motion to stay the instant lawsuit during

the pendency of the state proceeding [#20].

ENTER: Qpato9 Aap Fo

CAOAN HUMPHREY LEFKOW
Dated: July 14, 2003 United States District Judge

®See International Coll. of Surgeons, 153 F.3d at 360 and 360 n.4 (“It is well established that this court may
raise the doctrines of Burford and Pullman abstention sua sponte and that the failure of the parties to raise those
doctrines at any point in the proceedings is no impediment to our consideration of the applicability of those
doctrines” but noting that a party may waive the abstention argument under Younger).

9



Commissioner such as his conduct during the hearing. Thus, the court will grant in part and deny
in part defendants’ motion to dismiss with respect to Counts I, II and TIT.

With respect to plaintifts’ state law claims, these claims fall under the Local Government
and Governmental Employees Tort Immunity Act (the “Tort Immunity Act”), 745 ILCS 10/2-101
et seq. The Tort Immunity Act states that “a public employee is not liable for acts or omissions
occurring within the scope of his employment . . . and the public entity is not liable when its
employee is not liable.” Moran v. City of Chicago, 286 Ul. App. 3d 746, 751, 676 N.E.2d 1316,
1320 (1" Dist. 1997), citing 745 TLCS 10/2-109, 10/2-204. An exception exists, however, where
the public employer or entity engages in willful and wanton conduct. 745 TLCS 10/2-202;
Moran, 286 Ill. App. 3d at 755, 676 N.E.2d at 1323.

Plaintiffs argue that thcir allegations demonstrate that Welch falls under an exception in
the Tort Immunity Act, relying on Jdlehour Dev. Co. v. City of St. Charles, 88 Ill. App. 3d 47,
409 N.E.2d 544 (2d Dist. 1980). In /dlehour, the court determined that the plaintiff properly
stated a claim for intentional inference with a contractual relationship against a public official
under the Tort Immunity Act. The court held that a public official may not hide behind a cloak
of immunity if he maliciously and intentionally misuses the powers of his office.

As defendants point out, the Illinois Supreme Court overruled the Jdlehour case in Village
of Bloomingdale v. CDG Enter., Inc., 196 Ill. 2d 484, 493-94, 498-99, 752 N.E.2d 1090, 1097-
98, 1101 (2001), There, the court held that the Tort Immunity Act does not recognize exceptions
to immunity for conduct inspired by “corrupt or malicious motives.”

Clearly, Welch is entitled to immunity under the Tort Immunity Act. Plaintiffs allege that

the initial investigation that led to the suspension and, ultimately, the revocation of plaintiffs’



established rule from Reed v. Vill. of Shorewood, 704 F.3d 943, 951-52 (7" Cir. 1983), that a
local liquor commissioner is entitled to absolute immunity for actions undertaken in the exercise
of his judicial responsibilities as liquor commissioner. Plaintiffs respond that Welch is not
subject to absolute immunity based on his actions “prior to, during and after the hearing process”
such as where he informed an alderman and the press that he would closc plaintiffs’ bar; that he
initially closed the bar without a hearing; that he referred to “dancers” as prostitutes and refused
to subpoena the dancers; that his agents contacted plaintiffs’ landlord and stated that plaintiffs
would be unable to make their monthly payments; and that he remstated the criminal charges
against Jerry. (PI. Resp. at 3-4.)

Because plaintiffs also seek to hold Welch liable for his actions undertaken as mayor, he
is not entitled to absolute immunity from plaintiffs’ federal claims. See Reed, 704 F.2d at 951-52
(allowing only for partial summary judgment based on absolute immunity for the defendant as
liquor commissioner because the plaintiffs pleaded facts that went beyond the defendant’s
actions a local liquor commissioner and president of the board of trustees to his “nonjudicial,
nonlegislative conduct as mayor”).’ Rather, Welch’s absolute immunity is limited only insofar as
plaintiffs seck to hold Welch liable for the revocation of their liquor license or otherwise plead

facts that show Welch took action in the exercise of his judicial responsibilities as Liquor

violated the “Monell doctrine” under Count III. A suit against a public official in his “official capacity” is a suit
against the entity of which that official is un agent. Richman v. Sheahan, 270 F.3d 430, 439 (7" Cir. 2001). Thus, to
the extent that plaintiffs suc Welch in his official capacity and the Liquor Commission or the City, the court
dismisses the official capacity claims against Welch.

*Defendants arguc that the State's Attorney is solely responsible for pursuing criminal charges, citing
People y, Woolsey, 139 Il. 2d 157, 169, 564 N.E.2d 764, 769 (1990), and People v. Griffin, 58 Ill. App. 3d 644,
645-46, 374 N.E.2d 1031, 1033 (1* Dist. 1978). Both cases concern how the State’s Attorney’s conduct, such as
when she enters a nolle prosequi, affects a criminal defendants’ speedy trial rights. Clearly, these cases arc not on
point.



Nonetheless, there are limited execptions where a federal court will abstain from adjudicating a
case before it because there is a state proceeding. To determine whether to stay a lawsuit based
on the state proceeding, a federal court considers the following abstention doctrines: (1) the
Colorado River doctrine where the federal court abstains to avoid duplicative litigation,
Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 818-19 (1976); (2) the
Younger doctrine where the state proceeding is judicial in nature and implicates an important
state interest and there is an adequate opportunity in the state proceeding to raise constitutional
challenges, Younger v. Harris, 401 U.S. 37, 53 (1971), see Middlesex County Ethics Comm. v.
Garden State Bar Ass'n, 457 U.S. 423, 432 (1982); (3) the Burford doctrine where there are
unsettled questions of state law because there exists a complex state administrative process and
the need for centralized decision-making, Burford v. Sun Oil Co., 319 U.S. 315, 333 (1943); and
(4) the Pullman doctrine, where a federal constitutional issue may be mooted or presented in a
different posture based on a state court determination of pertinent state law, Railroad Comm'n of
Texas v. Pullman Co., 312 U.S. 496, 499-501 (1941).

Defendants cite no Icgal authority for their motion to stay this lawsuit and thus they
provide no legal analysis under any of the abstention doctrines. Accord, 330 W. Llubbard Rest.
Corp, y. United States, 203 F.3d 990, 997 (7" Cir. 2000) (“A party’s failure to address or develop
a claim in its opening brief constitutes a waiver of that claim, for it is not the obligation of this
court to research and construct the legal arguments open to parties, especially when they are
represented by counsel. ... In order to develop a legal argument effectively, the facts at issue
must be bolstered by relevant legal authority; a perfunctory and undeveloped assertion is

inadequate to raise a separate basis for appeal.”) (internal citations and quotations omitted).



Mime Order Fusm (6¢07)

United States District Court, Northern District of Illinois

Name of Assigned Judge Joan H. Lefkow Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C9159 DATE 7114/2003
CASE Jones vs. City of Country Club Hills, et al.
TITLE
[In the following box (a) indivate the party filing the motion, c.g., plaintiff, detendant, 3rd party plaintiff, and (b) state brictly the nature
Motion: of the motion heing presented]
DOCKET ENTRY;
(1) oO Filed motion of [ use listing in “Motion” box above.]
(2) a Briet'in support of motion due _
(3) Oo Answer brief to motion due _ Reply to answer brief due__
(4) Qo Ruling/Hearing on___set for al
(5) o Status hearing|held/continued to] [set for/re-sct for] on set for at
(6) oO Pretrial conference[held/continucd to] [set for/re-set for] on _____set for at. .
(7) ia Trial[set for/re-set for] on at.
(8) O [Bench/Jury trial] (Hearing) held/continued to - at.
(9) Ct) This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) OlLocal Rule 41.1 CFRCP4I(a\(1) OO FRCP41(a)(2).
ao [Other docket entry] Enter Memorandum Opinion and Order. Defendant Welch’s motion to

dismiss [14-1] is granted in part and denied in part. Counts 1, II and Lil are dismissed against Welch where
plaintiffs seek to hold Welch liable as local liquor commissioner and in his official capacity. Counts IV, V, and
VI are dismissed in their entirety against Welch. Welch is directed to file an answer to plaintiff's amended
complaint within 20 days of the date of this order. Furthermore, defendants’ motion to stay the instant lawsuit
during pendency of the state court proceeding [20-1] is denied. Court hearing date of 7/15/03 is stricken.

a)

No notices required, advised in upen court.

[For further detail see order attached to the original minute order. ]

2

No notices required.

number of natives

/ | Notices mailed by judge's stalf.

Notified counsel by telephone.

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liquor liccnse as well as Jerry’s criminal charges was based on Welch’s retaliation because his
wife drank at plaintiffs’ bar. Thus, plaintiffs seek to hold Welch liable for conduct inspired by
corrupt or malicious motives. As indicated above, such conduct does not create an exception to
the Tort Immunity Act. For these reasons, the court finds that Welch is entitled to immunity as
to plaintiffs’ state law claims and thus it will dismiss Counts IV, V and VL*
B. Defendants’ motion to stay this lawsuit

The court next proceeds to address defendants’ motion to stay this lawsuit pending the
outcome of their appeal in the state proceeding. Defendants argue that if the Tllinois Appellate
Court reverses the Circuit Court’s decision, that disposition would render plaintiffs’ instant
lawsuit moot.’ Plaintiffs respond that this lawsuit, save their malicious prosecution claim, does

not concern the “correctness” of the administrative proceedings but rather defendants’ abuse of

powcr in secretly investigating and prosecuting plaintiffs without any evidence. (PI. Resp. at 2.)
Plaintiffs also attach defendants’ reply brief before the Illinois Appellate Court and assert that
this brief demonstrates that the state action is not dispositive or “germane” to the instant lawsuit.
(PI. Resp. at 2-3.)

“[FJederal courts have a strict duty to exercise jurisdiction conferred upon them by

Congress.” International Coll. of Surgeons v. City of Chicago, 153 F.3d 356, 359 (7" Cir. 1998).

‘The parties also disputc whether Welch's actions amount to willful and wanton conduct under the Tort
Immunity Act. Because the court determines that Welch is immune under the Tort Immunity Act, it dogs not address.
this dispute.

Ona related issue, Welch asserts (in a footnote) in his reply brief that “[a]rguably” the Rooker-Feldman
doctrinc bars plaintiffs from bring their federal claims based on their failure to include these claims in the state
proceeding, citing Manley v. City of Chicago, 236 F.3d 392, 397 (7" Cir. 2001). The Rooker-Feldman doctrine
“precludes federal district courts from reviewing completed state adjudications, even for federal constitutional
infirmities.” Francorp, Inc. v, Siebert, 210 F. Supp. 2d 961, 970 (N.D, Ill, 2001). Because the parties represent that
the state proceeding is not yet completed, the Rooker-Feldman doctrine does not pertain here.

7



communities, Welch also told an alderman that the City would close plaintiffs’ bar. The
alderman conveyed this information to members of the public and other liquor licensees.
Moreover, in December 2001 or January 2002, agents of the City contacted plaintiffs’ landlord.
‘The agents indicated that plaintiffs were in trouble and would be unable to pay their bills in the
near future.

Immediately following the suspension, defendants issued plaintiffs a notice that they
would hold a hearing to determine whether to revoke plaintiffs’ liquor license, In November
2001, defendants held the hearing. At the hearing, a police officer was the only individual who
testified as an eyewitness for the “prosecution.” The officer testified that, he believed, plaintiffs
were unaware of any prostitution or solicitation, including his solicitation of a female patron.

According to plaintiffs, Welch had no intention of having a fair hearing and was biased in
favor of the prosecution. During the hearing, plaintiffs requested to subpoena female patrons to
testify but Welch refused this request. Furthermore, during a recess, Welch referred to plaintiffs’
female patrons as “prostitutes.” Moreover, Welch impeded plaintiffs’ counsel’s questioning of a
witness and precluded testimony when the prosecution had no objection to such testimony.

In their closing brief for the hearing, plaintiffs noted that the criminal charges against
Jerry had been dismissed. Welch, however, ordered the reinstatement of these charges.
Although Welch knew that these charges were baseless, he did this to skew the case in favor of
revocation of plaintiffs’ liquor license, Nonetheless, when the State’s Attorney's Office
familiarized itself with the history of the dispute and read the transcript of the hearing for the
revocation of plaintiffs’ liquor license, it dismissed the charges again.

On December 19, 2001, the Liquor Commission revoked plaintiffs’ liquor license.



“willful and wanton conduct” under state law (Count IV). Before the court ig Welch’s motion to
dismiss plaintiffs’ amended complaint against him under Federal Rule of Civil Procedure
12(b)(6) and defendants’ motion to stay this lawsuit pending the outcome of a state proceeding.
This court has jurisdiction under 28 U.S.C. §§ 1331, 1343 and 1367. For the reasons set forth
below, the court grants in part and denics in part Welch’s motion to dismiss and denics
defendants’ motion to stay.
FACTS

The allegations from plaintiffs’ amended complaint, taken as true, are as follows: In
January 2001, plaintiffs purchased Jerry’s Sports Bar (the “bar”), located in Country Club Hills,
Illinois, During the next four months, they made improvements to the bar and received a liquor
license to sell liquor at the bar. In April 2001, they opened the establishment as a bar and
restaurant, In September 2001, Welch, as the City’s Liquor Commissioner (and, as Mayor, sce
235 ILCS 5/4-2 (stating mayors shall be the local liquor commissioner for their respective
municipalities), initiated a secret investigation of plaintiffs’ bar. Welch initiated this
investigation for the purported reason that defendants suspected plaintiffs’ bar was a house of
prostitution, This reason, however, was a pretext for retaliation based on an unspecified incident
involving Welch's wife’s drinking at the bar. Eventually, this investigation resulted in the
suspension of plaintiffs’ liquor license for one week without a hearing and Jerry’s arrest for
keeping a house of prostitution and solicitation. According to plaintiffs, the Liquor Commission
has not suspended any “Caucasian licensees” without a hearing,

In response to Jerry’s arrest and the suspension of plaintiffs’ liquor license, Welch

notified the press and defamed plaintiff's, destroying their reputation in their respective


UNITED STATES DISTRICT COURT -
FOR THE NORTHERN DISTRICT OF JLLINOIS-”
EASTERN DIVISION we a

r

JERRY JONES and LaDONNA JONES,

Plaintiffs,

v. No. 02 € 9159
Judge Joan H. Latow
THE CITY OF COUNTRY CLUB HILLS,

an Illinois Municipal Corporation,

THE LIQUOR COMMISSION OF THE CITY
OF COUNTY CLUB HILLS and

DWIGHT WELCH, Individually,

Defendants.

weweeve vee eee

MEMORANDUM OPINION AND ORDER

In a six-count amended complaint, plaintiffs Jerry and LaDonna Jones (individually,
“Jerry” and “LaDonna”) allege defendants, the City of Country Club Hills (the “City”), the
Liquor Commission of the City of Country Club Hills (the “Liquor Commission”) and Dwight
Welch (“Welch”), are liable for violations of their equal protection and due process rights under
42 U.S.C, § 1983 (Counts LITT)! and for malicious prosecution and intentional infliction of

emotional distress under state law (Counts V-VI). Moreover, plaintiffs allege Welch is liable for

‘Plaintiffs alloge defendants violated their equal protection rights under Count I, their “property right in
their liquor license” pursuant to 42 U.S.C. § 1983 under Count II and the “Afoneil doctrine” based on institution of
hearings and criminal charges against them under Count IIL (Am. Compl. at 5-10.) To state a claim under § 1983,
plaintiffs must show that defendants (1) violated their constitutionally protected rights (2) according to a municipal
policy or custom, or an action taken by a final policymaker (what plaintiffs refer to as the “Monell doctrine”). See
Bennett v. Roberts, 295 F.3d 687, 694-95, 699 (7"" Cir, 2002), Read separately, cach Count is deficient because
plaintiffs fail to plead one of the requisite elements for a cause of action under § 1983, Read together, however,
plaintiffs adequately plead that defendants are liable for violations of their equal protection and due process rights
under § 1983. As such, the court liberally construes plaintiffs’ amended complaint and allows these claims to stand.

—

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