southeast Evanston recreation facility. 1 asked them to make a $100 million loan to the City at 1

percent...” fd. at 29.

Evanston next argues that under §1983 Evanston is liable only where the City itself caused
the constitutional violation. Evanston argues that because “the City Council as a body never acted
on the matters Alderman Drummer discussed with Mr. Sunshine, Alderman Drummer’s actions are
not attributable to the City.” We are not convinced that the evidence uncquivocally proves that
Alderman Drummer was not acting on behalf of the City. Alderman Drummer testified that he
discussed his proposal to Northwestern with nearly the entire City Council, the City Manager, the
Mayor, and the City’s law department. Alderman Drummer stated that most of the aldermen
“absolutcly” knew about what he was planning to propose to Northwestern and that he kept them
informed of his progress. According to Alderman Drummer, many of the aldermen, as well as
Mayor Morton, were interested in pursuing the strategy and discussed with Alderman Drummer the
lst of contributions Northwestern would be asked to make, Although the City Council never
formally voted to grant Alderman Drummer the authority to work out a solution with Northwestern,
we cannot say that there is no dispute of material fact as to whether Alderman Drummer was

operating on behalf of the City in his capacity as an alderman.

The City also argues that any agreement between Alderman Drummer and Northwestem that
had the effect of trading land use relief for contributions from Northwestern would necessarily have
been ultra vires and void. Thus, the argument continues, Alderman Drummer could not possibly
have extorted Northwestern, We are not persuaded. The basis of Northwestern’s unconstitutional
conditions claim is that the alleged proposal was illegal. The fact that an agreement entered into

between the City and the University would have been unenforceable does not change the fact that

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there was technically no “amendment,” the key is that certain of Northwestern’s properties that were
excluded from the Nationa] District for want of “residential integrity” were later added to the Local
District. Likewise, our decision does not turn on whether or not the University’s structures were
“contributing,” but rather on whether, by including these properties, the City treated Northwestem
differently than other property owners.
CONCLUSION

For the foregoing reasons we deny the City of Evanston’s Motion for Reconsideration under

Rule 59(e).

It is so ordered.

United States District Judge

Dated: /> / fos

Je



Evanston’s motion as to this count.

In its first argument, Evanston takes issue with this Court’s conclusion that there was some
evidence that Alderman Drummer engaged in a plan of extortion when he allegedly made a proposal
to Mr. Sunshine that conditioned exclusion of University property from the Local District on the
University’s agreement to make contributions to the City. According to Evanston, this Court
erroncously relied upon Mr. Sunshine’s affidavit in finding a dispute of material fact. Evanston
contends that Mr. Sunshine’s affidavit was not entitled probative weight because it conflicts with
his deposition testimony. Evanston’s argument overlooks the fact that a material issue of fact exists
even if we do not considcr Mr. Sunshine’s affidavit. The deposition testimony of Mr. Sunshine and
Alderman Drummer leaves unanswered many questions as to exactly what transpired between these
two parties. Evanston suggests that there is no evidence that Alderman Drummer was in any way
involved in a scheme to induce Northwestern to contribute to the City in return for exclusion from
the Local District. Alderman Drummer’s own deposition testimony suggests otherwise. For
example, Alderman Drummer testified that at the “[flirst meeting [Mr. Sunshine and T] talked
generally about what was being proposed and the problems that would present to the university [sic].
Next meeting I was a little bit more specific with him about things 1 thought the city needed...”
(Drummer Dep., Plain. Ex. D at 27). In his deposition Alderman Drummer went on to state, “1
proposed what T thought the city needed was the university [sic] to take over all maintenance of Fire
Station No. 3... asked the university [sic] to retum all property in the Research Park back to the tax

rolls. [asked that it take over maintenance of all streets in the U district, contribute $2.5 million to

the construction of a westside library. T asked them to contribute 1 think it was 3.5 million to a



Northwestem was put in a position to choose between its right to be free from property taxation and
its interest in being excluded from the Local District. That Northwestern chose the legal option docs

not render its claim invalid.

Evanston next argues that, given the facts, Northwestern could not possibly have been the
victim of unconstitutional extortion because Mr. Sunshine refused to accept Alderman Drummer’s
proposal and the City took no action to coerce Northwestern after this initial rejection. The injury
in unconstitutional conditions claims, however, is not limited to the ultimate relinquishment of one’s
constitutional right, but may also be the deprivation of a privilege otherwise conferred. That
Northwestern refused to give up its right to be free from property taxation is irrelevant. See Memorial
Hosp. v. Maricopa County, 415 U.S. 250, 257 (1974) (finding statute denying nonemergency
medical care to indigents with less than one year’s residence in the county unconstitutional despite
the fact that “there [was] no evidence in the record before us that anyone was actually deterred from
traveling by the challenged restriction”). It is the City’s act of “putting substantial pressure” on
Northwestern to chose between its constitutional right to be free from property taxation and its
interest in being excluded from the Local District that matters. See /lobbie v. Unemployment
Appeals Comm'n of Fla., 480 U.S. 136, 140-141 (1987) (noting that denial of unemployment
compensation because worker refused to work on the Sabbath burdencd woman’s right to free
exercise by forcing her to choose between following her religion and forfeiting benefits); see also
Sherbert v. Verner, 374 U.S. 398, 404 (1963). Based on the facts before us we must conclude that
a reasonable finder of fact could determine that the City included in the Local District some

Northwestern properties because the University declined to forfeit its right to be free from property

5.



Mayute Order Fora (0697)

United States District Court, Northern District of Illinois

wath
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CASE NUMBER 00 C 7309 DATE 12/4/2002
CASE Northwestern University vs. The City of Evanston
TITLE

[[n the following box (a) indicate the party filing the motiun, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state brietly the nature
of the motion being prescnied.]

MOTION:
DOCKET ENTRY;
qd) Qa Filed motion of [ use listing in “Motion” box above.] ~]
(2) oO Brief in support of motion due
(3) 0 Answer brief to motion duc. _. Reply to answer brief due___.
(4) co Ruling/Hearing on____sset for at
(3) oO Status bearing[held/continucd to] (set for/re-set for)on_ ss setfor_ at
(6) a Pretrial conference[held/continued to] [set for/re-set for}on__—s set for_ at
iva) oO Trial[set for/re-set for]on______at
(8) Qo (Bench/Jury trial] [Hearing] held/continuedto sat
() Q This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) C) Local Rule 41.1 OFRCP41(a)(1) OO FRCP41(a)(2).
ao) [Other docket entry] Enter Memorandum Opinion and Order: The City of Evanston’s motion for

reconsideration under Rule 59(c) (89-1) is denied

a) ff (For further detail see order attached to the original minute order.)

T No notices required, advised in open court. : Document.
Number.

No notices required, of

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taxation. We therefore deny the City’s motion for reconsideration of the unconstitutional conditions

count,
OL. _Vindictive Action

To establish a vindictive action claim the University must demonstrate that the government
treated unequally those individuals who are prima facie identical in all relevant respects. Evanston
contends that we misapprehended the evidence in concluding that Northwestern had presented
sufficient evidence to support a vindictive action equal protection claim.

In our September 11 opinion we stated “the City offers evidence suggesting Northwestern
was not singled out for differential treatment.” Order at 14 (emphasis added). ‘The City
misinterprets our opinion as stating that the University did not mect its burden of demonstrating it
was singled out. We made no such finding. Our order simply noted that Evanston had offered
evidence suggesting Northwestem was not singled out and that Northwestem had offered
contradictory evidence. We concluded that there was a genuine issue of matenal fact as to whether
the City treated Northwestern differently from identical individuals or entitics.

The fact that Northwestern was not the only property owner to have its properties included
in the final Local District does not mean it was not singled out. Rather, we considered whether the
properties included in the Local District were equally deserving of inclusion, or whether certain of
Northwestern’s properties were included because of the City’s animus towards the Universily.
Evanston also argues that our order was incorrect because we relied upon evidence of a “late
amendment,” which added the University’s T-2 properties to the Local District. Evanston argues
that there was, in fact, no “late amendment,” but rather only a proposal by NEHDA, which was

subsequently approved by the City Council, to add the properties. Although the City is correct that

b=



UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF JLLINOTS NOCUETES
EASTERN DIVISION

DEC 05 2002
NORTHWESTERN UNTVERSITY, )
)
Plaintiff, )
)

v. ) No. 00 C 7309

)
THE CITY OF EVANSTON, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

MARVIN E. ASPEN, District Judge:

Plaintiff Northwestern University (“Northwestem” or “University”) alleges that the City of
Eyanston (“Evanston” or “City”) designed and enacted a historic preservation district that wrongfully
encompassed numerous University propertics. Northwestern sucd Evanston pursuant to 42 U.S.C.
§1983, claiming the City’s action imposed an unconstitutional condition on the Universily and
violated its rights to equal protection, duc process, and freedom of speech. livanston moved for
summary Judgment on all counts, and on September 11, 2002, this Court granted m part and denied
in part Evanston’s motion. We declined to grant summary judgment on two of Northwestern's
claims: vindictive action equal protection and unconstitutional conditions. Currently before us is
Evanston’s Motion for Reconsideration of these two claims. For the following reasons we deny
Evanston’s motion.

BACKGROUND
Northwestern currently owns approximately 240 acres of land in Evanston, Under the terms

ofa charter granted by the State of Hlinois, this land is exempt from property taxation. Northwestern

contends that the City harbors animus towards the University because Northwestem refuses to make



voluntary financial contributions to the City. A more detailed factual background can be found in
our September 11, 2002 opinion granting in party and denying in part Evanston’s motion for
summary judgment. See Northwestern University v. City of Evanston, 2002 WL 31027981 (N.D. Ml.
2002).

Northwestern filed this six-count lawsuit against the City alleging that the City’s action
violated a number of the University’s constitutional rights. On September 11, 2002, this Court
granted Evanston’s motion for summary judgment as to Count TI (equal protection), Count LI
(substantive due process), Count IV (procedural due process), and Count VI (First Amendment).
Evanston now urges us to reconsider our denial of summary judgment on Count I (vindictive action
equal protection) and Count V (unconstitutional conditions).

ANALYSIS
1_Standard of Review

Evanston filed its motion for reconsideration within ten days of our September 11, 2002
order. We therefore analyze Evanston’s motion under rule 59(e) of the Federal Rules of Procedure.
See United States v. Deutsch, 981 F.2d 299, 301 (7th Cir. 1992). A Rule 59(e) motion is not an
appropriate forum for rehashing previously rejected arguments, see Caisse Nationale De Credit
Agricole v, CBI Indus., Inc., 90 F.3d 1264, 1269 (7th Cir. 1996), and may be granted only if there
has been a mistake of law or fact or if there is newly discovered evidence not previously available.

See Figgie Int'l, Inc. v. Miller, 966 F.2d 1178, 1180 (7th Cir, 1992).

TI. Unconstitutional Conditions

Evanston makes four arguments in support of its Motion for Reconsideration on the

unconstitutional conditions count. We are not persuaded by any of these arguments and deny

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