Skokie Federal Water Lawsuit Hearing Transcript

Case: 1:18-cv-04289 Document #: 39 Filed: 08/28/18 Page 1 of 29 PageID #:274
1 IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS
2 EASTERN DIVISION
3
ELAINE JACOBSON; PAUL PITALIS; ) Docket No. 18 C 4289
4 ROBERT QUANE; GEORGIA NUT COMPANY; )
and, VILLAGE OF SKOKIE, an Illinois )
5 Municipal Corporation, )
)
6 Plaintiffs, )
)
7 vs. )
)
8 CITY OF EVANSTON, an Illinois )
Municipal Corporation; STEPHEN )
9 HAGERTY, individually and as Mayor )
Evanston; JUDY FISKE, individually; )
10 PETER BRAITHWAITE, individually; )
MELISSA WYNNE, individually; DONALD )
11 WILSON, individually; ROBIN RUE )
SIMMONS, individually; THOMAS )
12 SUFFREDIN, individually; ELEANOR )
REVELLE, individually; ANN RAINEY, )
13 individually; and, CICELY FLEMING, )
individually, ) Chicago, Illinois
14 ) August 21, 2018
Defendants. ) 9:30 o'clock a.m.
15
16 TRANSCRIPT OF PROCEEDINGS - MOTIONS

BEFORE THE HONORABLE CHARLES P. KOCORAS
17
18 APPEARANCES:
19
For the Plaintiffs: MR. MICHAEL M. LORGE
20 Village of Skokie
5127 Oakton Street
21 Skokie, Illinois 60077
22
FOLEY & LARDNER
23 BY: MR. WILLIAM J. McKENNA, JR.
321 N. Clark Street, Suite 2800
24 Chicago, Illinois 60654
25
1 APPEARANCES (Continued):
2
For the Defendants: ANCEL, GLINK, DIAMOND, BUSH, DiCIANNI
3 & KRAFTHEFER, P.C.
BY: MR. DERKE J. PRICE
4 MR. MATTHEW T. DiCIANNI
140 S. Dearborn Street, 6th Floor
6
Court Reporter: MS. JOENE HANHARDT
7 Official Court Reporter
219 S. Dearborn Street, Suite 1744-A
(312) 435-6874
9
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PROCEEDINGS RECORDED BY
11 MECHANICAL STENOGRAPHY
TRANSCRIPT PRODUCED BY COMPUTER
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1 THE CLERK: 18 C 4289, Village of Skokie, et al., vs.
2 City of Evanston, et al. Motion to strike, to dismiss and file
3 excess pages.
4 MR. PRICE: Good morning, Judge, Derke Price and Matt
5 DiCianni for the City of Evanston, Mayor Hagerty --
6 I am sorry?
7 MR. LORGE: I was covering the mike.
8 THE COURT: This is a government mike and it has got
9 to be a precise distance.
10 (Laughter.)
11 THE COURT: Okay? We have all of these standards.
12 And, so, it is touchy.
13 So, go ahead. I will let you introduce yourself.
14 MR. LORGE: Michael Lorge -- L-o-r-g-e -- Corporation
15 Counsel, for the Village of Skokie.
16 MR. McKENNA: And William McKenna, outside counsel for
17 the Village of Skokie.
18 THE COURT: Okay.
19 And you do not have to apologize for messing with the
20 mike. Okay?
21 (Laughter.)
22 MR. LORGE: I will just stand taller, your Honor.
23 (Laughter.)
24 THE COURT: So, this is an issue over water rights; is
25 that the idea?

1 MR. PRICE: That it is, Judge.
2 MR. DiCIANNI: Yes.
3 THE COURT: And, so, it may be similar to the last
4 case, where somebody -- the amended complaint was filed 45
5 days, you say, after service --
6 MR. PRICE: Correct.
7 THE COURT: -- without permission?
8 MR. DiCIANNI: Right.
9 MR. PRICE: Correct, Judge.
10 THE COURT: And what else?
11 Is there another criticism you have?
12 MR. PRICE: Well, more substantively, we were on the
13 verge of filing the motion to dismiss and the memo and, then,
14 we got the amended complaint, without any warning from the
15 court -- it just sort of showed up -- and it has two new counts
16 in it.
17 But it really was done without leave of the Court --
18 THE COURT: All right.
19 MR. PRICE: -- and it is adding some new counts. And
20 we are in the middle of our motion. So --
21 THE COURT: The motion, will it have to -- there are
22 two new counts, you say?
23 MR. PRICE: There are.
24 THE COURT: Does that change the contours or the
25 essential facts of the allegations in the complaint?

1 MR. PRICE: In one respect it is a benefit to us.
2 Skokie recognizes it is not a person under the Fourteenth
3 Amendment and it can't be a plaintiff under 83. So, they took
4 that out.
5 THE COURT: Okay.
6 MR. PRICE: And that was in our motion.
7 THE COURT: Okay.
8 MR. PRICE: And, on the other hand, they have raised
9 two new arguments -- new counts -- that will require more
10 argument.
11 One is a common law count and another is under the
12 very statute under which we sell the water.
13 They have claimed a breach of the statute. And that
14 feeds -- if you have previewed at all, Judge, our argument --
15 that we all have to go back to the Cook County Circuit Court,
16 where the statute sends us.
17 THE COURT: What do you say to you getting on a faster
18 and bigger horse before they had a chance to --
19 MR. McKENNA: Sure, your Honor.
20 THE COURT: -- size up the situation?
21 MR. McKENNA: I honestly think they are misreading
22 Rule 15, which allows you the one-time filing --
23 THE COURT: Well, they say I have to do it in 21 days,
24 though.
25 MR. McKENNA: -- as a matter of course.

1 Well, but that is not right, your Honor, because you
2 have to read 15(a)(1)(a) and 15(a)(1)(b).
3 And 15(a)(1)(b) says that if the pleading is one to
4 which a responsive pleading is required -- that is a complaint,
5 okay -- then you have 21 days after service of a responsive
6 pleading or a motion.
7 So, your time to automatically file an amended
8 complaint goes until 21 days after they have filed an answer or
9 a motion.
10 I mean, that is pretty clear. There is Seventh
11 Circuit law on that.
12 We are not trying to inconvenience them. We just
13 wanted to clean the complaint up, make it a little more
14 complete and get it ready for what we knew was going to be
15 their motion to dismiss.
16 THE COURT: Well, I appreciate that; but, when you do
17 something over a month after you served them, the expectation
18 -- reasonable expectation -- is they are going to go to work
19 and prepare their motion in whatever form they are going to do
20 it.
21 You expected that motion to come, anyway.
22 MR. McKENNA: Sure.
23 THE COURT: In whatever particulars it might be
24 described as.
25 And, so, it is not, you know, out of the realm of

1 foresight that they would begin work.
2 And, for you, a month-and-a-half after service, to
3 enlarge the complaint or change it or do something to it, which
4 would vitiate -- perhaps potentially vitiate -- their work, is
5 not exactly fair, irrespective of whether you are right on the
6 21 versus 45-day business.
7 MR. McKENNA: Well -- and, you know, irrespective of
8 whether I am right or wrong about the rule, your Honor, the
9 Committee, you know, that drafts the rules, came out and cut
10 the balance toward allowing you to even see a motion to dismiss
11 and, then, file your amendment as of course, so long as you do
12 it within 21 days of seeing the motion to dismiss.
13 So, that is just kind of the way the rule was
14 rewritten --
15 THE COURT: Yes.
16 MR. McKENNA: -- in 2009.
17 THE COURT: Well, here is what I do not want to become
18 an expert on: The 21 versus 45 days and the minutia of the
19 rules.
20 We have rules for everything and I do not want to get
21 this case sidetracked. I want to, rather, get to the
22 importance of it.
23 So, here is my sense of it. Much of what you have
24 already done will not go to waste. Okay? You might have to
25 expand it a little bit.

1 And, as I said, I do not want to become an expert on
2 whether he is right on the 21 days, as measured differently or
3 does not apply in this circumstance. I do not want to get into
4 that.
5 MR. PRICE: Okay.
6 THE COURT: I am much more interested in the substance
7 of it.
8 And, having in mind that much of what you have done
9 will not be wasted effort, I am going to deny the motion to
10 strike or to not entertain the new complaint and give you
11 whatever time you need to respond to this complaint. Okay? I
12 just think that is the fairer thing.
13 Now, what is my jurisdiction here? This is a pricing
14 thing, right?
15 MR. McKENNA: Right. At bottom, it is a pricing
16 thing.
17 THE COURT: Yes.
18 MR. McKENNA: But we have brought a variety of
19 constitutional claims here, you know. And the big nub of the
20 issue for your Honor is going to be really whether the right to
21 receive water is a fundamental right that will be protected by
22 the Constitution.
23 THE COURT: Is that a --
24 MR. PRICE: Well, to be clear --
25 THE COURT: Go ahead.

1 MR. PRICE: -- it is a fundamental right to get it
2 from the City of Evanston from its pumping station. And the
3 only right they have to get it from the City of Evanston is a
4 state statute that said -- going all the way back to when they
5 reversed the river -- "If we are going to reverse the river,
6 anybody who draws water from Lake Michigan has to sell it to
7 people who present a pipe at their border."
8 And that is the statute under which they have a right
9 to get water from Evanston.
10 They can go drill a well, they can go to other people
11 who have straws in the lake, like the City of Chicago. They
12 have a number of sources.
13 Their only right to get water from Evanston -- to be
14 sold by Evanston to them -- is that state statute.
15 MR. McKENNA: And, your Honor, that is sort of the nub
16 of the controversy in the entire case.
17 THE COURT: Well, let me ask you. So, is my
18 jurisdiction dependent on whether there is a constitutional
19 right for anybody to get water?
20 MR. McKENNA: Right.
21 We are not -- we are not -- suing under -- it is
22 federal question jurisdiction.
23 THE COURT: But is that the federal question?
24 MR. McKENNA: Yes, sure. Yeah.
25 THE COURT: The inalienable right --

10
1 MR. McKENNA: And it's 1983, as well.
2 THE COURT: -- to get water?
3 MR. McKENNA: And it is 1983, as well, your Honor,
4 because we have some individual plaintiffs whose standing they
5 are challenging.
6 We have individual plaintiffs who have also made a
7 1983 claim against Skokie. So, you have got 1983 jurisdiction
8 and a federal question arising under.
9 And, then, the state claims that counsel references
10 are under the Court's supplemental jurisdiction.
11 THE COURT: But if -- is there any case law out there
12 in the country that, in similar factual circumstances, someone
13 is held or denied the existence of a constitutional right to
14 water?
15 MR. McKENNA: There is some case law out there.
16 THE COURT: Is there authority out there?
17 MR. McKENNA: Yes.
18 MR. LORGE: Definitely.
19 MR. PRICE: The State of Illinois said in the Niles
20 case, in which Niles sued the City of Chicago under the same
21 statute, there is no fundamental right. That is what the State
22 of Illinois' rule is.
23 MR. McKENNA: Well, we disagree with that
24 characterization of the case.
25 THE COURT: Okay.

11
1 Is --
2 MR. PRICE: Well, Judge --
3 THE COURT: If you want my instinct, my instinct is
4 that as necessary as it is to existence, and mortals need it,
5 besides food and water, that the Constitution is not so
6 expansive to deal with this circumstance and make it an
7 inalienable right to water.
8 That is my instinct, but that could be as dead wrong
9 as, you know, me sitting here with a robe.
10 Here is the other side. It is funny, I live in Burr
11 Ridge and we, too, have a -- we are buying water. Burr Ridge
12 buys it from, I think, Bedford Park or somebody.
13 But I do not pay any attention to that. I just pay
14 the bill when it comes.
15 (Laughter.)
16 THE COURT: So, I do not know the legalities of it.
17 So, I just throw that out because it is not a strange thing
18 that one village buys water from another village.
19 MR. McKENNA: Right.
20 THE COURT: Is there any way -- I assume Evanston is
21 -- one of the things in the complaint that I perused is that
22 Skokie's rates from much higher than comparable villages.
23 Is that --
24 MR. PRICE: The claim is -- -
25 THE COURT: -- the claim?

12
1 MR. PRICE: That is the claim because Evanston is now
2 going to sell to Niles and Morton Grove. And as we indicated
3 in our motion, the -- when you look at the expired contract of
4 Skokie --
5 THE COURT: I just looked at the complaint.
6 MR. PRICE: Yes.
7 THE COURT: I did not really look at your motion.
8 MR. PRICE: The statute that obligates Evanston to
9 sell to Skokie says we can charge a rate so long as it is not
10 higher than the rate we charge our own customers.
11 So, just previewing, in general, Skokie's new rate is
12 not equal to -- Evanston pays more than Skokie, even under the
13 new rate, but Skokie pays more than Niles and Morton Grove just
14 if you look at the per-thousand gallon rate.
15 THE COURT: Yes.
16 MR. PRICE: But the difference is we are using the
17 same manual that all Water Works use across the country -- the
18 American Public Works Association Manual -- and that manual
19 divides up the costs.
20 Skokie wants its water delivered to three places.
21 Niles, one.
22 Morton Grove, one.
23 The difference -- and Skokie is about three times
24 Niles and Morton Grove because Skokie demands it at three
25 locations.
13
1 THE COURT: Three times, what? Further?
2 MR. PRICE: The cost of bringing the water --
3 THE COURT: Oh, the cost.
4 MR. PRICE: -- based on the capital cost of the pipes
5 and the --
6 THE COURT: So, you are saying you are cost-
7 justified?
8 MR. PRICE: So, right.
9 So, everybody is being charged the same rate under the
10 same analysis; but, because Skokie wants three points of
11 delivery --
12 THE COURT: Yes.
13 MR. PRICE: -- their rate is about three times what
14 Niles is. And that is what they say, is, "No, we want to pay
15 what Niles pays, even though -- "
16 THE COURT: I get it.
17 MR. PRICE: " -- even though we are three times that."
18 MR. LORGE: Your Honor --
19 THE COURT: What do you say to that, that it is three
20 times as difficult or more expensive for them to serve Skokie
21 as it is the two comparable or contiguous suburbs?
22 MR. LORGE: Not only is it inconsistent with the way
23 rates are supposed to be calculated and devised, but it is an
24 oversimplification of what was part of almost two years of
25 negotiation.
14
1 And when we get to the heart of the case and experts
2 are prepared, which we have and which Evanston does not have --
3 they have been relying on internal Public Works people to try
4 to determine their rates --
5 THE COURT: They are trying to save money so that the
6 water rates do not go up.
7 (Laughter.)
8 MR. LORGE: There are lots of reasons why they need to
9 save money, your Honor, which is also at the core of this case,
10 perhaps.
11 But, setting that aside, their approach to the rates
12 is inconsistent with what is done throughout this country. And
13 those who really understand and write the very standards that
14 counsel is pointing to, will point out that, in fact, it is not
15 an issue of three points of delivery.
16 And, in fact, along the way in the negotiations, we
17 were more than willing to give up those rates. We even
18 suggested going to the same system of delivery that Niles has.
19 And, also, we have to point out, your Honor, that --
20 THE COURT: Do you mean one point of delivery?
21 MR. LORGE: And even more than that, what is called
22 dump and pump, which is rather than an integrated system that
23 Skokie and Evanston currently have, we were prepared to take
24 water at our border, just like Niles and Morton Grove.
25 But we also have to point out there are four other

15
1 customers. And the fundamental issue, we believe, aside from
2 getting into this debate of rates and how they are supposed to
3 and how they are calculated everywhere except in Evanston, is
4 the issue of whether -- enlarging on the constitutional issue,
5 whether -- a municipality that happens by geographic
6 happenstance to be sitting on the edge of the lake, can charge
7 one rate to Skokie and completely -- not just Niles, but four
8 other municipalities all get different rates.
9 It isn't logical. It isn't appropriate. And it isn't
10 fundamentally fair for every single municipality to be at the
11 whim of Evanston when they negotiate out rates.
12 There is a fundamental fairness here that needs to be
13 addressed. And it goes to the heart for the whole state.
14 Certainly, the Court is familiar with the Tribune's
15 recent series dealing with just this issue in the south suburbs
16 and how rates were -- there is no consistency in rates; and,
17 sometimes even seemed to be exacerbated in poorer
18 municipalities.
19 This is something very ripe for consideration.
20 And we also recognize that most states in the United
21 States of America have Water Commissions that determine all
22 rates. Not just for business providers, but for municipal
23 providers.
24 This is a very important and broad question that the
25 Court really needs to see not in just the micro-nature of

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1 Skokie and Evanston, but in the broader constitutional issue of
2 what is fundamentally fair when a municipality happens to be a
3 source of water.
4 THE COURT: Well --
5 MR. LORGE: We need to have that addressed.
6 THE COURT: -- what was the breaking point in the
7 discussions, aside from the end result of the disparity in
8 rates?
9 MR. LORGE: So, going to the micro-issue of the water
10 rates --
11 THE COURT: Yes.
12 MR. LORGE: -- was, quite simply, the calculations
13 dealing with Evanston's desire to have a certain return on its
14 investment, requiring ten percent -- ten percent -- back on any
15 investments in the system.
16 So, by example, we anticipate that they -- or they
17 maintain, and we probably go along with the idea, that they --
18 may have to replace their intake valves in the coming five, six
19 years.
20 They wanted a ten percent on top of that, which is
21 absolutely not supported by any calculation of rates. It is --
22 it is --
23 THE COURT: But is that the predicate for their rates
24 for the --
25 MR. LORGE: That was part of the --

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1 THE COURT: -- comparable suburbs?
2 MR. LORGE: Sorry, your Honor.
3 Yes, that was part.
4 THE COURT: So, they are being consistent?
5 MR. LORGE: Oh, not with the other municipalities at
6 all.
7 I am sorry. I misunderstood you.
8 THE COURT: Well, I am trying to figure out if the
9 fallout was over their wanting to recapture their actual and
10 future investment.
11 MR. LORGE: It goes to the formula that they created,
12 which was different for us than for the other municipalities.
13 And one piece of that was, by example, seeking a ten percent
14 return.
15 The other, then, goes to the calculation of the system
16 of pipes and was inconsistent when we said, "One point of
17 delivery, same system, dump and pump." And they absolutely
18 would not address it.
19 Their calculations, when this Court gets to the point
20 of hearing experts, will see clearly that it is, quite frankly,
21 punitive in how they have approached the Village.
22 MR. PRICE: Judge, the statute -- again, they are
23 treating Evanston like it has got the sole and exclusive
24 control over all water that Skokie could get.
25 Skokie can go drill a well and they have other places

18
1 they can get water from.
2 Burr Ridge doesn't get their water from Evanston.
3 They have a statute that says they can get a right to
4 have water sold to them by --
5 THE COURT: It is too expensive.
6 (Laughter.)
7 MR. PRICE: Right.
8 THE COURT: Too far to come.
9 (Laughter.)
10 MR. PRICE: And that statute precedes -- it prefaced
11 that there would be disputes over rates. And it says, "Because
12 this is a Cook County problem" -- these are the only people who
13 can draw from Lake Michigan -- "you go to the Circuit Court of
14 Cook County if there is a rate over dispute."
15 That is what the same statute says.
16 The very statute that gives them a right to get water
17 from Evanston says, "And if you have a dispute over the rate,
18 go to the Circuit Court of Cook County."
19 When they didn't agree, Evanston filed the suit in
20 Cook County. That is going to be where it gets mediated. What
21 is the correct rate to be charged to Skokie? That is where
22 they are.
23 This is an end-run and there is no fundamental right.
24 Niles -- that Niles case -- considered this exact same
25 thing and the state said, "There is no fundamental right at the

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1 state."
2 This is a statutory right --
3 THE COURT: Yes.
4 MR. PRICE: -- for Skokie to buy water.
5 THE COURT: Okay.
6 Let me -- I think I am going to have to cut this
7 short.
8 We do not have a Water Commission here, right?
9 MR. LORGE: Right.
10 THE COURT: Anywhere in Illinois, I take it?
11 MR. McKENNA: Well, we do, but it only applies to
12 businesses. It doesn't apply -- municipalities are exempt.
13 THE COURT: Okay.
14 So, during the give-and-take between the two villages
15 or the cities -- well, you have one village and one city, I
16 guess?
17 MR. LORGE: Correct.
18 THE COURT: There was no intermediate third-party, I
19 take it?
20 MR. LORGE: That is correct, your Honor.
21 We did request and seek it and Evanston was not
22 willing to undertake it.
23 MR. PRICE: That is the Circuit Court's job under the
24 statute.
25 THE COURT: And that is where you think the case

20
1 belongs?
2 MR. PRICE: That is what the statute says.
3 THE COURT: And you are quite willing to mediate under
4 the auspices of the Circuit Court of Cook County, right?
5 MR. PRICE: That is what the statute directs, Judge.
6 THE COURT: Oh, I understand. That is your position.
7 MR. LORGE: But, your Honor, their case in state court
8 has nothing to do with that. Their state court case was
9 simply, in the dark of night, they went into executive session,
10 they passed this rate that was even higher than anything --
11 THE COURT: You make it sound sinister.
12 MR. LORGE: Well, your Honor, I have to tell you in
13 many ways it was because it was punitive.
14 They passed a rate in executive session that was
15 higher than anything that was ever put on the table.
16 And their Circuit Court action is simply a declaratory
17 judgment saying, "Tell Skokie that we had the right to do
18 that."
19 It is in no way a case that is structured to deal with
20 the fairness of the rates imposed.
21 THE COURT: Well, it seems to me -- I mean, one, they
22 are either right or wrong on whether the statute circumscribes
23 where you can take a dispute. That is Point One.
24 Point Two, my sense is if you have a declaratory
25 judgment action pending in state court -- or filed there or

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1 have auspices there -- and you have a federal constitutional
2 claim here, we are going to be dealing, essentially, with the
3 same subject matter and the same outcomes, whatever they are,
4 assuming consistency of outcomes.
5 So, there is not going to be two cases going on at the
6 same time deciding, essentially, the fundamental rate structure
7 between the parties.
8 MR. LORGE: Forgive me, your Honor, but the state
9 court has already spoken to that issue --
10 MR. PRICE: No.
11 MR. LORGE: -- and has said that its intention is to
12 stay it.
13 And it, in fact, entered and continued all motions and
14 all litigation there pending this case.
15 THE COURT: Right, because -- I do not know who the
16 judge is.
17 Who is the judge in state court?
18 Is this in Chancery?
19 MR. LORGE: Gamrath.
20 MR. PRICE: Yes.
21 MR. LORGE: It's Gamrath.
22 THE COURT: Oh, I know her.
23 MR. PRICE: Yes.
24 And she didn't -- she didn't -- indicate an indication
25 to stay. She said, "We knew they were going to bring a motion
22
1 to dismiss."
2 THE COURT: Yes.
3 MR. PRICE: And she said, "Well, I would be interested
4 to see what the judge says."
5 THE COURT: Okay.
6 MR. PRICE: She didn't --
7 MR. LORGE: She entered and continued all motions.
8 MR. PRICE: Right.
9 THE COURT: Okay.
10 MR. PRICE: She did not say, "I am going to stay my
11 case."
13 Well, that is because she is wise enough to know we
14 should not have an investment of lawyers' time and energy and
15 cost --
16 MR. PRICE: To taxpayers.
17 THE COURT: -- cost being prime -- between the federal
18 case, the state case, two things going on, toward, essentially,
19 the same end.
20 MR. PRICE: Exactly.
21 THE COURT: Right?
22 MR. PRICE: Right.
23 THE COURT: So, I do not know.
24 I thought -- since we have terrific magistrate judges
25 here, or I have in the past, before the success of the

23
1 magistrate judges in settlement -- maybe a third-party would be
2 helpful. But I am not so sure that a neutral, if you will,
3 trying to bridge differences --
4 MR. LORGE: Your Honor --
5 THE COURT: It would, at least, be the least expensive
6 than going full steam to accomplish that.
7 Pardon?
8 MR. LORGE: Your Honor, Skokie would certainly -- let
9 me please say two things quickly.
10 One, I believe, to a certain degree, we are glossing
11 over significant and important constitutional issues that we do
12 believe the Court, at least, should recognize, that needs to be
13 heard or worked through. However, we would never -- and have
14 tried repeatedly to deal with the micro-issue of the rates.
15 And if the Court feels that it would be prudent for us
16 to try to work with a magistrate, that would be fine.
17 The only matter I caution is that that discussion
18 could get bogged down in the discussion of rates, as an expert
19 would be able to explain them either to the magistrate or to
20 the Court.
21 THE COURT: Yes.
22 MR. LORGE: And that would be the one thing the
23 magistrate would have to. Otherwise, we are just talking in a
24 vacuum.
25 THE COURT: Yes.

24
1 Well, here is what I -- in listening and having this
2 discussion with both sides here, I am convinced of one thing,
3 that you need an answer to the question as to whether the
4 dispute between the parties in this instance is deserving of a
5 decision as to whether there is a federal constitutional right
6 which transcends the rate dispute, if you will, that presently
7 exists in the pleadings.
8 And I told you before, my instinct was that there is
9 no such constitutional right, but I would be interested in
10 dealing with the question with an open mind and seeing what any
11 courts around the -- federal courts around the -- country have
12 said about that, in light of the fact that clearly the state
13 has decreed some statutory mechanism to accomplish water going
14 around, if you will, and recognizing some places are closer to
15 Lake Michigan than other places.
16 And they are, in some ways, at least in the cat bird's
17 seat of available water. Okay?
18 So, we are going to do that here.
19 And, then, I will decide the question of jurisdiction
20 here, which is predicated on the Constitution, and we will work
21 from there.
22 I hope it is not really too costly for both sides, but
23 I do not see any way, other than getting that principal
24 question resolved.
25 And, then, if there is jurisdiction here, we will

25
1 decide how best to solve the problem. Okay?
2 MR. PRICE: Fine.
3 MR. LORGE: I appreciate it, your Honor.
5 So, you need to, I think, re-do your motion, right, to
6 some extent?
7 MR. PRICE: Right. It needs to address the two new
8 counts and --
10 MR. PRICE: -- to take out the --
11 THE COURT: How much time would you like to do that?
12 MR. PRICE: We will get that done in two weeks, Judge.
13 THE COURT: All right. We will give you two weeks.
14 And I am going to give you time to file a reply to
15 their motion to -- an answer, actually, to their motion.
16 How much time would you like for that?
17 MR. McKENNA: Thirty days, your Honor?
18 MR. LORGE: Yes.
19 THE COURT: We will give you thirty days to answer the
20 putative motion to dismiss.
21 And, then, I am going to give you two weeks to reply.
22 MR. PRICE: Fine.
23 THE COURT: Okay?
24 MR. McKENNA: And, your Honor, could I ask one other
25 question?
26
1 THE COURT: Yes, sure.
2 MR. McKENNA: In light of some of the colloquy in some
3 of your earlier motions today --
4 THE COURT: Yes?
5 MR. McKENNA: -- could we get some relief from the
6 fifteen pages?
7 There are a lot of constitutional issues here.
8 (Laughter.)
9 MR. PRICE: Yes, that is one of my -- that is one of
10 the -- motions up today.
11 THE COURT: The answer is "Yes," because you are
12 asking.
13 (Laughter.)
14 THE COURT: So, the fifteen pages is arbitrary.
15 So, how many pages do you think you are going to need?
16 Definitely, you are not going over twenty-five, like
17 in the other case.
18 MR. McKENNA: Twenty-five would be fine, your Honor.
19 THE COURT: I will give you twenty-five.
20 MR. LORGE: I was going to say twenty-four.
21 (Laughter.)
22 THE COURT: I will give you twenty-five on your
23 original motion.
24 And can you live with fifteen on any reply?
25 MR. PRICE: I can live with fifteen on the reply,

27
1 Judge.
2 THE COURT: Okay. That is what we will do, then,
3 because at some point I get exhausted reading.
4 (Laughter.)
5 MR. PRICE: Yes, I am at eighteen. I won't need seven
6 to do the two new counts.
8 MR. LORGE: Your Honor, one other housekeeping matter.
9 THE COURT: Yes?
10 MR. LORGE: On our appearance, I did not -- for
11 whatever reason, I have properly checked that I am a member of
12 the trial bar. And so is Mr. McCarthy -- James McCarthy --
13 from my office.
14 THE COURT: Okay.
15 MR. LORGE: I don't know if you want us to re-file our
16 appearance?
17 THE COURT: No, no, no.
18 MR. LORGE: Okay.
19 THE COURT: It is fine.
20 MR. PRICE: The bad news is you are going to get a
21 prisoner case.
22 (Laughter.)
23 THE COURT: I will recognize that.
24 (Laughter.)
25 THE COURT: When we go to trial, let me know you are

28
1 equipped to try the case.
2 MR. LORGE: Very good. Okay.
3 THE COURT: Although, I do not know, I cannot see this
4 case ultimately going to trial.
5 Although the experts, if we get to the experts, then
6 it might be a trial. I do not know.
7 MR. PRICE: It might be a trial somewhere.
8 THE COURT: Somewhere, right.
9 (Laughter.)
10 THE COURT: Judge Gamrath is good, as well.
11 I think she went to -- I taught at John Marshall for a
12 long time and she is connected to John Marshall. So, she is a
13 very nice lady and, I think, very bright.
14 MR. PRICE: Yes.
16 But you do not get your choice at this point. You get
17 us both. Okay?
18 (Laughter.)
20 Did you give them dates, Vettina?
21 THE CLERK: The motion is due September 4th; the
22 response is due October 2nd; and, the reply is due October
23 16th.
24 THE COURT: I will start paying closer attention to my
25 water bill.
29
1 (Laughter.)
2 MR. McKENNA: Thank you, your Honor.
3 MR. PRICE: Thank you, Judge.
5 MR. LORGE: Thank you.
6 MR. DiCIANNI: Thank you, your Honor.
7 THE COURT: Thanks.
8 * * * * *
9 I certify that the foregoing is a correct transcript from the

record of proceedings in the above-entitled matter.
10
11 /s/ Joene Hanhardt August 22, 2018

Official Court Reporter
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Skokie Federal Water Lawsuit Hearing Transcript

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Case: 1:18-cv-04289 Document #: 39 Filed: 08/28/18 Page 1 of 29 PageID #:274

1 IN THE UNITED STATES DISTRICT COURT

16 TRANSCRIPT OF PROCEEDINGS - MOTIONS

1 THE CLERK: 18 C 4289, Village of Skokie, et al., vs.

2 City of Evanston, et al. Motion to strike, to dismiss and file

4 MR. PRICE: Good morning, Judge, Derke Price and Matt

5 DiCianni for the City of Evanston, Mayor Hagerty --

7 MR. LORGE: I was covering the mike.

8 THE COURT: This is a government mike and it has got

11 THE COURT: Okay? We have all of these standards.

12 And, so, it is touchy.

13 So, go ahead. I will let you introduce yourself.

14 MR. LORGE: Michael Lorge -- L-o-r-g-e -- Corporation

15 Counsel, for the Village of Skokie.

16 MR. McKENNA: And William McKenna, outside counsel for

17 the Village of Skokie.

18 THE COURT: Okay.

19 And you do not have to apologize for messing with the

22 MR. LORGE: I will just stand taller, your Honor.

24 THE COURT: So, this is an issue over water rights; is

25 that the idea?

1 MR. PRICE: That it is, Judge.

2 MR. DiCIANNI: Yes.

3 THE COURT: And, so, it may be similar to the last

4 case, where somebody -- the amended complaint was filed 45

5 days, you say, after service --

6 MR. PRICE: Correct.

7 THE COURT: -- without permission?

8 MR. DiCIANNI: Right.

9 MR. PRICE: Correct, Judge.

10 THE COURT: And what else?

11 Is there another criticism you have?

12 MR. PRICE: Well, more substantively, we were on the

14 we got the amended complaint, without any warning from the

15 court -- it just sort of showed up -- and it has two new counts

17 But it really was done without leave of the Court --

18 THE COURT: All right.

19 MR. PRICE: -- and it is adding some new counts. And

20 we are in the middle of our motion. So --

21 THE COURT: The motion, will it have to -- there are

22 two new counts, you say?

23 MR. PRICE: There are.

24 THE COURT: Does that change the contours or the

25 essential facts of the allegations in the complaint?

1 MR. PRICE: In one respect it is a benefit to us.

2 Skokie recognizes it is not a person under the Fourteenth

3 Amendment and it can't be a plaintiff under 83. So, they took

5 THE COURT: Okay.

6 MR. PRICE: And that was in our motion.

7 THE COURT: Okay.

8 MR. PRICE: And, on the other hand, they have raised

9 two new arguments -- new counts -- that will require more

11 One is a common law count and another is under the

12 very statute under which we sell the water.

13 They have claimed a breach of the statute. And that

14 feeds -- if you have previewed at all, Judge, our argument --

15 that we all have to go back to the Cook County Circuit Court,

16 where the statute sends us.

17 THE COURT: What do you say to you getting on a faster

18 and bigger horse before they had a chance to --

19 MR. McKENNA: Sure, your Honor.

20 THE COURT: -- size up the situation?

21 MR. McKENNA: I honestly think they are misreading

22 Rule 15, which allows you the one-time filing --