Plaintiffs now ask the court to reconsider its finding that plaintiffs have no standing to
pursue injunctive relief in light of the court’s subsequent certification of a damages class. They
allege that circumstances have changed because plaintiffs can now represent the interests of the
other class members on a claim in which they would otherwise lack the requisite personal stake.
In essence, this would allow them to accomplish indirectly what they could not accomplish
directly.

The court declined to certify a Rule 23(b)(2) injunctive relief class because plaintiffs had
no standing entitling them to represent such a class upon commencement of this litigation.
Further, the Supreme Court recognizes that “a plaintiff must demonstrate standing separately for
each form of relief sought.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC) Inc., 528
U.S. 167, 185 (2000). Even if the court were to disregard this defect, plaintiffs cannot now
acquire standing to seek injunctive relief through subsequent class certification if they did not
have such standing upon filing suit. Because a class does not become a separate entity until it is
certified, a class will not be certified unless the named plaintiff has standing at that time.
Robinson v, City of Chicago, 868 F.2d 959, 968 (7" Cir. 1989) (citing O’Shea, 414 U.S. at 494)).
Thus, subsequent certification of a class that does include members with live claims cannot
confer standing to seek injunctive relief on the named representative(s) who lacked standing at
the outset of the litigation. The Supreme Court has recognized, however, that “if a named class
representative has standing at the time a suit is initiated, class actions may proceed in some
instances following mootness of the named class representative’s claim.” Gratz v. Bollinger, 539

USS. 244, 286 n.5 (2003) (citing Sosna v. Iowa, 419 U.S, 393, 402 (1975), and distinguishing


Lastly, and interestingly, plaintiffs cite Payton v. County of Kane, 308 F.3d 673 (7" Cir.
2002), and Ortiz v. Fibreboard, 527 U.S. 815 (1999), to support their asserted standing to pursue
class claims for injunctive relief. Although these cases do not change this court’s analysis, they
do warrant attention. In Payton, court allowed the named representatives to pursue class claims
against 19 counties, even though the named individuals had claims against only two counties.
The court applied the “juridical link” doctrine, noting that “if all the defendants took part in a
similar scheme that was sustained either by a contract or conspiracy, or was mandated by a
uniform state rule, it is appropriate to join as defendants even parties with whom the named class
representatives did not have direct contact.” Payton, 308 F.3d at 679. The “juridical link”
doctrine is inapplicable to the instant case, however, because this is not a situation where the
named representatives hold valid claims, but wish to pursue class claims against other defendants
who did not injure plaintiffs because all defendants operated under a common statute. Unlike the
instant case, Payton was not initiated by plaintiffs holding no personal stake in the outcome of
the litigation.

However, in applying the juridical link doctrine, the Payton court found it proper to
address the class action issues before addressing the named plaintiffs’ lack of standing to pursue
claims against certain defendants. In doing so, the court cited Ortiz for the rule that a court
should determine issues of class certification prior to conducting a standing inquiry when
certification issues are “’ logically antecedent’ to Article III concerns and themselves pertain to
statutory standing,” Ortiz, 527 U.S. at 831. This represented an exception to the rule that standing
represents a threshold inquiry requiring determination before the court addresses class

certification issues. The Payton court interpreted this exception as resting on “the long-standing



that that the district court can certify a class represented by the holder of an expired claim.
Rather, it held that a case that is live when filed maintains sufficient vitality to allow a district
court to decide whether there is a proper class and, if there is, to decide the case on behalf of the
members of the class with live claims. Holmes, 854 F.2d at 232. The Geraghty plaintiffs
subsequently lost their personal stake in the outcome of the injunctive case after initiating the
litigation, while the named plaintiffs in the instant case never held a personal stake in this
litigation.
Plaintiffs do cite one case, Lewis v. Tully, 99 F. ‘B.D: 632 (N_D. Ill. 1983), which seems
directly on point and supportive of plaintiff's arguments. In Lewis the issue was whether the
absence of the representative plaintiff's “live” claim upon filing the complaint defeated standing
even where the class as a whole held a “live” claim. The Lewis court found the Lyons test
applicable to the class as whole rather than to the named plaintiff. Accordingly, it held that the
named plaintiff demonstrated a sufficient personal stake in the litigation where he or she had
been subjected to the allegedly illegal conduct in the pest, even though he or she personally was
no longer subjected to the challenged conduct and could not claim a real and immediate threat of
injury in the future. In so holding, the Lewis court, like the plaintiffs in the instant case, cited

Gerstein for the proposition that a class representative’s lack of an actual personal stake in

prospective relief did not prove fatal under Article III. Numerous subsequent cases, however,

have either disregarded Lewis and its broad interpretation of Gerstein, or have criticized it for

giving “short thrift” to the standing requirements established in Lyons.” See Williams v. City of

Chicago, 609 F. Supp. 1017, 1019 (N.D. Il. 1985); Todd v. County of Cook, 1986 WL 5667, *2-



between that case and the facts before it where the class representatives lacked standing to pursue
injunctive relief upon initiating the litigation).'

Plaintiffs cite Gerstein v. Pugh, 420 U.S. 103 (1975), to support their position that,
regardless of the mootness of their own claims upon filing the complaint, certification of a class
of persons similarly situated who would be detained under the allegedly unconstitutional
procedures meets the requirements of standing for injunctive relief. Gerstein, however, merely
allowed for an exception to the rule that mootness of a representative’s claim moots the claims of
the class. Gerstein, 420 U.S. at 111. Although it lends support for a more flexible standing
analysis in class action suits, especially where the named plaintiff's claim expires prior to
certification, Gerstein never went so far as to allow class certification to revive a case that was
“dead on arrival.” See Holmes v. Fisher, 854 F.2d 229 (7" Cir. 1988). Additionally, Gerstein is
distinguishable from the instant case because the Court’s analysis assumed that the plaintiff's
own claim was live when the suit commenced. Holmes v, Fisher, 854 F.2d 229, 232 (7 Cir.
1988).

Plaintiffs also cite United States Parole Com’n v. Geraghty, 445 U.S. 388 (1980), in
which a prisoner brought a proposed class action and, when the district court denied certification,
appealed the denial as a class representative. The defendants sought to dismiss the appeal as
moot upon the prisoner’s release from prison, but the court held that, despite the expiration of the

named representative’s claim, the class’s claim remained live. Geraghty, however, did not hold

‘Plaintiffs claim that discovery has revealed that, “on May 2, 2002, the day this lawsuit
was filed, approximately 26 class members were in detention.” Significantly, plaintiffs have not
identified any such class member to this court or sought to have him or her intervene as a named
plaintiff who might have had standing to seek injunctive relief at the time this suit was filed.

5



recognized the practical limitations of plaintiffs who find themselves with a very small window
of time in which to file suit due to the brief time frame associated with the challenged
governmental conduct. Id, The court explained, however, that any findings the court made in a
claim for damages might have precluded the city from re-litigating the merits because a holding
declaring the city’s policy unconstitutional would serve as res judicata in any succeeding action.
Id.

In Holmes, the plaintiff brought suit seeking injunctive relief because he was detained
eight days before he was first taken to court for probable cause and bail hearings. The court
tejected the plaintiff's argument that his claim fell within the “capable of repetition, yet evading
review” category, responding that this doctrine applies only when the repetition will likely
involve the same parties. The plaintiff did not argue that he was likely to be arrested and held for
an extended period of time in the future, but contended that under Sosna v. Iowa, 419 U.S. 393
(1975), and Geraghty the mootness of a plaintiff's personal claim did not prevent him from
serving as the representative of a class. Holmes, 854 F.2d at 232. The court noted that in Sosna,
however, because class certification occurred before the representative’s claim became moot, the
certified class itself could step into the plaintiff's shoes to preserve class standing. Id. Before
concluding, the court confirmed the rule that a case must be dismissed if the representative’s
claim became moot prior to certification. Id, In closing, the court declared that the case was
“dead on arrival” and that Geraghty could not “breath new life into a stillborn case.” Id. It
emphasized that to allow certification of a class headed by a “representative” who had no live
controversy with the defendant upon filing the suit “would be to jettison the last vestiges of the

case-or-controversy requirement in class actions.” Id, at *11.


Minute Onder Fore (06/57)

United States District Court, Northern District of Dlinois

nate Meteae Jute | Robert W. Gettleman Shane cttned Seer

CASE NUMBER 02 C 3139 DATE Nov. 24, 2004
CASE Ronald Portis,et al v City of Chicago, et al
TITLE

[ln the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

(49) Oo Filed motion of [ use listing in “Motion” box above.]

(2) oO Brief in support of motion due

(3) Qa Answer brief to motion due__. Reply to answer briefdue__.

@ O Hearing

(5) Oo Status hearing

(6) Qo Pretrial conference[held/continued to] [set for/re-set for]on____—ssetfor__——s at_.

a” oO Trial[set for/re-set for]on__at

(8) oO [Bench/Jury trial) [Hearing] held/continuedto__at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) OGeneral Rule21 OFRCP41(a)(1) OO FRCP41(a){2).

qo) {Other docket entry] Memorandum opinion and order entered.

Accordingly, plaintiffs’ motion for reconsideration is denied.

ai @B (For further detail see order attached to the original minute order.]
No notices required, advised in open court.

No notices required

X | Notices mailed by judge’s staff.
Notified counsel by telephone.
Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

geod 1ohk!
courtreom ‘ date mailed notice
GS deputy's . on Loyd
deputy . \ fi
m Diletizne ebelved in

central Clerk's Office - i mailing deputy tanks



rule that, once a class is properly certified, statutory and Article III standing requirements must be
assessed with reference to the class as a whole, not simply with reference to the individual named
plaintiffs.” Payton, 308 F.3d at 680.

Although the Ortiz exception and its application in Payton seem to complicate questions

of class action standing, their holdings cannot be applied to dispose of another long-standing rule
- the rule that “standing cannot be acquired through the back door of a class action.” Payton, 308

F.3d at 682 (quoting Allee v. Medrano, 416 U.S. 802, 828-29 (1974) (Burger, C. J., dissenting)).

Neither of these cases stands for the proposition that the named plaintiffs can revive a dead claim
for injunctive relief by “piggy-back{ing]” on the claims of the class they represent. Id,
CONCLUSION
For the reasons stated herein, plaintiffs do not have standing to pursue injunctive relief

and the court denies plaintiffs’ motion for reconsideration.

Robelt W. Gettleman
United States District Judge

ENTER: November 24, 2004

10



3 (N_D. Ill); See generally, Robinson v. City of Chicago, 868 F.2d 959 (7" Cir. 1989); Holmes v.
Fisher, 854 F.2d 229 (7" Cir. 1988); Walters v. Edgar, 163 F.3d 430 (7" Cir. 1998).

This Court finds Robinson and Holmes indicative of the Seventh Circuit’s position on
class action standing after Lyons. In Robinson, the City of Chicago appealed judgments declaring
unconstitutional its policy allowing investigative detentions of misdemeanor arrestees. Citing
Lyons, the court reversed the judgments against the city, concluding that the plaintiffs did not
have standing to sue at the outset of the litigation. The court held that this case did not fall within
the “capable of repetition, yet evading review” doctrine, applicable when a claim is so transitory
that a plaintiff might have standing when the complaint is filed but loses his personal stake as the
litigation progresses. The court further emphasized that this doctrine applies only when the
repetition is likely to involve the same parties to the dispute. Robinson, 868 F.2d at 967 (citing

Holmes, 854 F.2d at 232).

The Robinson plaintiffs, much like plaintiffs in the instant case, argued that the certainty
of the constant existence of a class of persons suffering from the deprivation gives the class
standing, because new class members with live claims for injunctive relief are constantly entering
the category of those subject to defendants’ alleged practice. The court responded that if this
position were correct, the Lyons plaintiff need only plead his claim as a class action to acquire
standing. Id. at 968. Instead, the court concluded that Lyons relied on Q’Shea, where the Court
held that because a class does not become a separate creature until certification, a class action
will not be certified unless the named plaintiff has standing at the time of filing. Id, Accordingly,
the Robinson court concluded that the plaintiff never had a stake in declaratory relief to lose,

making the case “dead on arrival, moot the day the complaint was filed.” The court thus



must hold a “personal stake” in the outcome by showing a “significant likelihood and immediacy
of sustaining some injury.” Sierakowski y. Ryan, 223 F.3d 440, 443-44 (7" Cir. 2000) (see also
City of Los Angeles v. Lyons 461 U.S. 95, 101 (1983)). Also, without any continuing, present
adverse effects, past exposure to illegal conduct alone does not present a case or controversy for
purposes of injunctive relief. O’Shea v. Littleton, 414 U.S, 488, 495 (1974). A plaintiff must
show that his or her interest in remedying the alleged illegality is stronger than the general
public’s interest in seeing that “government officials comply with [their constitutional]
obligations.” Boston v. Chicago, 1998 WL 31532 (N. D. Ill. 1988) (citing Foster, 798 F.2d at
243). In class actions, if none of the named plaintiffs representing a class meets the standing
requirements, none of the plaintiffs may seek relief on behalf of himself or herself, or any other
member of the class. Q’Shea, 414 U.S. at 494 (citing Bailey v. Patterson 369 U.S. 31, 32-33
(1962).

Upon initiating the present action, plaintiffs could not demonstrate a “live” claim for
injunctive relief because all of the named plaintiffs had been released from incarceration and
were no longer subject to the challenged practice. Further, as the court articulated in dismissing
Count I of the second amended complaint seeking injunctive relief, plaintiffs could not
demonstrate a sufficient likelihood of future injury to establish standing upon filing the
complaint. Simack, 2003 WL at *10-11. The argument that they would again fall victim to
wrongful incarceration by the City of Chicago for some misdemeanor in the future amounted to
speculation. Id. at *10. A plaintiff must show that he or she is in “immediate danger” of again
being harmed by the defendants. Todd v. County of Cook, 1986 U.S. Dist LEXIS 26053, *5

(N.D. Ill. 1986).



subsequently denied defendants’ motions for summary judgment and motion to decertify the
class pursuant to Fed. R. Civ. P. 23(b).

Now, more than a year later, plaintiffs request reconsideration of the court’s March 5,
2003, dismissal of their claim for injunctive relief for two reasons: (1) because the court certified
the class on September 8, 2003, the named plaintiffs now have standing to request injunctive
relief on behalf of absent class members facing a “real and immediate danger” of detention by
defendants in violation of their constitutional rights; and (2) recent discovery confirms a
widespread pattern and practice of unconstitutional detentions affecting the members of the class,
who face a “real and immediate danger” of unconstitutional detention.

In opposing plaintiff's motion to reconsider, defendants raise several contentions, most
notably that: (1) the evidence that plaintiffs obtained through discovery does not constitute
“changed facts” deserving of reconsideration; (2) class certification does not change the reality
that plaintiffs’ injunctive relief request was moot on the day the case was filed; and (3)
certification of a damages class does not change the fact that plaintiffs lacked standing to seek
injunctive relief at the outset of the litigation.

For the reasons set forth below plaintiffs’ motion to reconsider dismissal of their claim
for injunctive relief is denied.

DISCUSSION

Article III of the Constitution requires the existence of an actual case or controversy, not
only upon initiation of the action, but at every phase of the proceedings. Jones v. Sullivan, 938
F.2d 801, 805 (7* Cir. 1991) (citing Foster v. Center Township of LaPorte County, 798 F.2d 237,

245 (7* Cir. 1986)). To meet this requirement a plaintiff requesting prospective equitable relief



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION -
RONALD PORTIS, MADRIC LANCE, and ) og
EMMETT LYNCH, individually and on behalf of ) y % 9 cy
aclass, )
) wi
Plaintiffs )
) No. 02 C 3139
v. )
) Judge Robert W. Gettleman
CITY OF CHICAGO, a municipal corporation; and )
TERRY G. HILLARD, Superintendent of the )
Chicago Police Department, )
)
Defendants. )
MEMORANDUM OPINION AND ORDER

Plaintiffs, Ronald Portis, Mardric E. Lance, and Emmett Lynch brought a class action
against Defendants City of Chicago, Terry Hillard, Joseph Griffin, John Risley, Francis Kehoe,
Evert L. Johnson and Robert Johnson, pursuant to 42 U.S.C. § 1983, alleging that plaintiffs were
unlawfully detained for prolonged periods of time after completion of all administrative steps
incident to their arrests for non-custodial ordinance violations. The court granted defendant’s
motion to dismiss Count I of plaintiffs’ second amended complaint for lack of standing to pursue
injunctive relief, and denied defendants’ motion to dismiss the remaining claims seeking
monetary damages. See Simack v. City of Chicago, 2003 WL 1924335 (N.D. Ill. 2003). Several
months later, on September 5, 2003, the court granted plaintiffs’ motion for class certification,
defining the class as “all persons who, during the class period, were arrested on ordinance
violations that carry no jail time in the City of Chicago and who were detained for more than two
hours after all administrative steps incident to the arrest, except non-discretionary ministerial

acts, were completed.” Portis v. City of Chicago, 2003 WL 22078279 (N.D. Ill. 2003). The Court

|73