Opinion
99 C 1817
December 17, 2001
I have reviewed the motion for summary judgment and the brief response from plaintiffs.
The res judicata argument fails. I accept as true that the Village sued the Garcias to enforce its occupancy code, and that the judge in the state proceeding ordered the Garcias to comply with the code. But the order has since been vacated, and the state court judge has agreed to stay the case pending resolution of this action. So nothing is res judicata.
It seems to me that the threshold issue that I must address is whether the plaintiffs' Fair Housing Act claims fail because the occupancy codes are exempt from the Act's coverage. As the Village indicates in its brief, section 3607(b)(1) of the Fair Housing Act entirely exempts from the Act's coverage "any reasonable local, State, or Federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling." See 42 U.S.C. § 3607(b)(1). Defendant's position is that there were far too many people in the plaintiffs' homes by any standard (12 or 14 people in a relatively small space — some unrelated renters, some family members) and that the Bensenville code which prohibits such an arrangement is perfectly reasonable. If the code is exempted, then plaintiffs' case will lose much of its force. The response to the summary judgment motion should explain why, in light of prevailing jurisprudence, the Bensenville restriction is unreasonable.
The next question is whether to bring plaintiffs' expert into the case. If the occupancy code is unreasonable under the law, then plaintiffs will need to respond to defendant's impact argument and understandably would like an expert to assist them. If I find that the occupancy code is reasonable under the law, then this becomes a case about selective enforcement. Expert testimony will probably still be useful to plaintiffs, although the scope of the testimony may be quite limited. Consequently, plaintiffs may have their expert, but expert discovery is on hold for the time being.
We will proceed as follows. Plaintiffs will provide a written response to the exemption argument discussed above as well as defendant's standing argument. Defendant shall have time to reply, and I will give my ruling in relatively short order. Plaintiffs will then know what remains of their case, and the expert will be better able to focus his research and his findings.
The motion for summary judgment is entered and continued. Plaintiffs' response is due January 25. The reply is due February 8.