Andrew Thomason Apr. 1, 2014, 9:00am

Members of Des Plaines' city council are immune from a lawsuit filed over their denial of a religious organization’s zoning change request, a federal judge ruled late last month.

In his March 24 opinion, U.S. District Judge Matthew Kennelly held that although the individual council members have absolute immunity, the American Islamic Center (AIC) can still challenge the decision by proceeding with its suit against the City of Des Plaines.

The AIC, according to the opinion, was set to buy a property in Des Plaines on the condition the city would approve a zoning map amendment allowing it to use the property for religions and educational purposes.

The Des Plaines city council, however, voted 3-5 against the zoning change.

The AIC sued, naming the city and the five city council members who cast "no" votes – James Brookman, Michael Charewicz, Patricia Haugeberg, Dick Sayad and Mark Walsten – as defendants in a complaint alleging the vote was religiously discriminatory.

The center argued that the denial of its requested zoning change violated the Religious Land Use and Institutionalized Persons Act of 2003, the Illinois Religious Freedom Restoration Act, the First and Fourteenth Amendments of the U.S. Constitution, the Illinois Constitution and Illinois Municipal Code.

The defendants then moved to dismiss the complaint, claiming among other arguments that AIC didn't allege a substantial burden on the right of the free exercise of religion.

The court overruled dismissing two of the suit's counts relating to the Fourteenth Amendment and Religious Land Use and Institutionalized Persons Act claims.

After the defendants withdrew their motion to dismiss the counts related to the Religious Land Use Act, the First Amendment, the Religious Freedom Restoration Act and the Illinois Constitution, they filed an updated motion to dismiss.

In that motion, the defendants asserted that the city council members have absolute legislative immunity to the suit, that the Tort Immunity Act prevents recovery by the AIC through the Religious Freedom Restoration Act and that he AIC cannot challenge the council's decision under the Illinois Municipal Code.

The AIC argued that the council members' decision to reject the zoning changes constituted an administrative, not legislative, act and as such, leaves them open to a lawsuit.

Kennelly rejected the center's argument and agreed with the defendants in his 13-page ruling that explains the individual council members do indeed have absolute legislative immunity to the suit.

To reach his decision, Kennelly looked to the 1997 ruling in Biblia Abierta v. Banks, in which he said the Seventh Circuit Court of Appeals held "that absolute legislative immunity protected two alderman who were sued for misconduct in connection with introducing and voting on a rezoning ordinance."

"The conduct of the city council members whom AIC has sued — voting against a particular zoning map amendment and issuing a regulation to that effect — was the same sort of activity," he wrote.

Although he granted that aspect of the defendants' motion, he denied their requested dismissal of some of the suit's counts.

Pointing to a lack of citation, Kennelly determined the Tort Immunity Act does not prevent recovery under the Illinois Religious Freedom Restoration Act as the defendants argued.

"The parties have cited no Illinois authority, and the Court has found none, that addresses whether the Tort Immunity Act bars a plaintiff from recovering damages against a local governmental entity under the IRFRA," he wrote.

Kennelly also rejected the city's argument dealing with the center's Municipal Code claim.

AIC conceded that there is no specific course of action through the Illinois Municipal Code regarding its case, but that its reference to the code provides the court guidance in how to interpret the zoning decision.

While the defendants argued that the code doesn't provide a specific course of action in the way AIC argued, Kennelly agreed with AIC's explanation, and upheld its ability to argue the claim.

Because the recent ruling allows the AIC to proceed with its suit against the city, Kennelly directed the city to address the remaining claims by April 7.

Court documents show that the AIC is being represented by Anthony J. Peraica, Jennifer Marie Hill and Jillian Marie Moore of Anthony J. Peraica & Associates in Chicago, as well as Kevin R. Vodak with the Council of American-Islamic Relations' Chicago chapter.

Lucy B. Bednarek, Ellen Kornichuk Emery and Julie A. Tappendorf of Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer P.C. in Chicago are listed as the city's attorneys. They also represented the city council members who Kennelly's ruling terminated as defendants in the suit.

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