# Do Not Pass Go LLC v. City of Rockford

> District Court, N.D. Illinois · September 6, 2024

URL: https://www.frixlaw.com/law-library/cases/10645650

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** September 6, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10645650

## How later opinions describe it (automated extraction)

- noting that “mere negative attitudes, or fear . . . are not permissible bases” for differential treatment
- declining to extend Cleburne to invalidate state law denying benefits to individuals acquitted of murder by reason of insanity, on the grounds that “[m]urderers are not harmless people,” but are “dangerous, and rationally feared”
- finding “Cleburne . . . inapposite” since “[i]t is not irrational for the City to believe that recidivism could be a problem with some persons served by half-way houses”

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DO NOT PASS GO, LLC, NEXT STEP )
RECOVERY HOMES, INC, KENNETH )
D. SIMS, and JASON RIDLEY, )
individually and on behalf of all those )
similarly situated, )
) No. 24 C 50074
Plaintiffs, )
) Judge Rebecca R. Pallmeyer
v. )
)
CITY OF ROCKFORD, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER
After serving a custodial sentence, an individual convicted of a crime in Illinois is ordinarily
released to the community but subject to a period of continued supervision, known as “mandatory
supervised release.” A critical challenge for these individuals is finding suitable housing. In
December 2023, the City of Rockford, Illinois amended its Zoning Ordinance to prohibit more than
one individual on mandatory supervised release or other forms of criminal-justice supervision from
living at the same address in any single-family or two-family residential zone within the City. The
Ordinance not only restricts the availability of housing for persons under supervision; it also limits
the uses that certain landowners can make of their property. Plaintiffs are two landlords who
operate group homes for individuals on supervised release in Rockford and two individual tenants
of these homes. They have sued the City under 42 U.S.C. § 1983, alleging violations of the
Fourteenth Amendment’s Equal Protection Clause on behalf of themselves and a putative class.
The City now moves to dismiss Plaintiffs’ claims under Federal Rule of Civil Procedure 12(b)(6).
For the reasons stated below, that motion is denied.
BACKGROUND
I. Illinois’s Residency Requirements for Individuals with Sex-Offense Convictions
Under State Supervision
This case takes place against the backdrop of several recent legal challenges to the State
of Illinois’s residency requirements for individuals with sex-offense convictions. Both parties
address these cases in their pleadings and briefs; given their clear relevance to the dispute here,
the court pauses to review them before turning to the facts of the case at bar.
Under Illinois law, prisoners who have reached the end of their sentences must locate
suitable “host sites” at which to reside while on supervised release. See Cordrey v. Prisoner Rev.
Bd., 2014 IL 117155, ¶¶ 5–9, 21 N.E.3d 423, 429. For individuals with registered sex offenses,
finding these host sites can be difficult thanks to a constellation of restrictions governing where
they may live. The State may prohibit such individuals from “resid[ing] near” locations such as
“swimming pools, beaches, theaters, or any other places where minor children congregate” unless
they secure advance permission from the Illinois Department of Corrections (“IDOC”). 730 ILCS
5/3-3-7(b-1)(12). More generally, any person classified as a “child sex offender” is forever barred
from residing within 500 feet of a school, playground, or daycare. 720 ILCS 5/11-9.3(b-5), (b-10).
And until recently, no two individuals with sex offense convictions could reside at the same
building anywhere in Illinois while on supervised release. 730 ILCS 5/3-3-7(a)(7.6).
In Murphy v. Raoul, a class of indigent prisoners who had served their sentences for sex
offense convictions but remained incarcerated due to their inability to afford compliant host sites
challenged this indefinite detention as unconstitutional. 380 F. Supp. 3d 731, 737–38 (N.D. Ill.
2019). In March 2019, the Murphy court granted the plaintiffs’ motion for summary judgment in
part, finding that the State’s implementation of its residency requirements violated both the Eighth
Amendment’s ban on cruel and unusual punishment and the Fourteenth Amendment’s Equal
Protection Clause by creating an illegal classification based on wealth. Id. at 759, 766. It later
entered a permanent injunction ordering the State to take appropriate steps to ensure that no
Murphy class member remained imprisoned.1 ([156] in Murphy v. Raoul, No. 16 C 11471 (N.D.
Ill. Jan. 15, 2020).)
In Barnes v. Jeffreys, another class of similarly situated prisoners challenged Illinois’s
“One-Per-Address” statute, the provision of the Illinois Code of Corrections preventing more than
one individual with a sex offense conviction from residing at the same address while on supervised
release. The Barnes court ruled at summary judgment in 2021 that this restriction, too, violated
the Eighth Amendment and the Equal Protection Clause as applied to the class. Barnes v.
Jeffreys, 529 F. Supp. 3d 784, 795, 799 (N.D. Ill. 2021). Another court in this district later
extended Barnes’s holding to an equivalent residency restriction for individuals on probation for
sex offenses. ([74] in Potkaj v. Watkins, No. 22 C 7176 (N.D. Ill. Apr. 4, 2024) (permanently
enjoining enforcement of 730 ILCS 5/5-6-3(a)(8.6)).)
These rulings have substantially changed the legal regime in Illinois governing housing for
individuals with registered sex offenses under State supervision. In response to the Murphy
injunction, the Illinois Department of Corrections (“IDOC”) implemented a new program called the
Intensive Community Reintegration Program, or “ICRP.” (Compl. [1] ¶ 25 n.2.) The ICRP partners
with community organizations to provide subsidized transitional housing for individuals with sex
offense convictions on supervised release. (Id. ¶ 48.) As of early 2024, it housed nearly 400
people throughout the state. (Id. (citing [129] in Stone v. Jeffreys, No. 21 C 5616 (N.D. Ill. Feb.
5, 2024).) And thanks to Barnes’ invalidation of the “One-Per-Address” statute, these program
participants may now reside in shared living environments at the same addresses. (Id.)
II. Rockford’s December 2023 Zoning Amendment
Until December 2023, Rockford’s Zoning Ordinance imposed no specific limit on the
number of individuals on supervised release living in a single location in the city. The Ordinance

1 While Murphy’s initial ruling only reached individuals with indeterminate
supervised-release terms, a related case later extended the same relief to individuals with
determinate supervised-release terms. See Stone v. Jeffreys, No. 21 C 5616, 2022 WL 4596379,
at *1, *4 (N.D. Ill. Aug. 30, 2022).
divides residential uses into the umbrella categories of “household living” and “group living,” with
the former defined as residential occupancy of a dwelling unit by either related persons or up to
three unrelated persons. See Rockford, Ill. Zoning Ordinance §§ 90-002, -002-B, 91-041, -046
(effective Mar. 31, 2023). “Group living” is defined as “[r]esidential occupancy of a dwelling by
other than a ‘household,’” and includes a number of listed subcategories such as boarding
houses, assisted living facilities, and “[g]roup homes for adjustment.” Id. § 20-004-A. Most
forms of “group living,” including group homes for adjustment, are prohibited outright in in all “R-
1” (single-family) and “R-2” (two-family) districts and allowed only by special-use permit
elsewhere.2 Id. tbl. 20-1. But the Ordinance originally defined “group home for adjustment” as a
“residence for those under court supervision while on probation, pre-release, or work release
wherein supervision, rehabilitation and counseling are provided to mainstream residents back into
society enabling them to live independently.” Id. § 90-002-A-6 (emphasis added)). Thus, under
Rockford’s prior zoning regime, individuals on supervised release were not subject to any explicit
residency restriction beyond the generally applicable three-unrelated-person limit on “household”
cohabitation, and could live in groups of up to three in the same dwelling unit in Rockford’s single-
family and two-family neighborhoods.
The text amendment approved in December 2023 (the “Amendment”) changed this regime
in several ways. First, it extended the listed categories of supervision in the definition of “group
home for adjustment” to include facilities for individuals on “parole [or] mandatory supervised
release.” Rockford, Ill. Zoning Ordinance § 90-002-A-6 (effective Dec. 7, 2023). Second, it
clarified that any residence “for two or more individuals under supervision” would constitute a
“group home for adjustment.” Id. (emphasis added). Third, it deleted the requirement that the
housing provide any “supervision, rehabilitation, or counseling,” meaning that a facility could be a

2 The Ordinance makes exceptions for certain types of congregate housing,
including “community-based housing” for persons with disabilities, which is a permitted use in all
residential zones as long as the proposed development has six or fewer residents. See Rockford,
Ill. Zoning Ordinance tbl. 20-1.
“group home for adjustment” even if it provided no such services. Id. Fourth, it added a new
sentence clarifying that “[f]or purposes of this subsection 6, any property with multi-unit dwellings
shall be considered one residence.” Id.
These changes significantly restrict the group housing available in Rockford for persons
under State supervision. The Ordinance now prohibits them from living at the same address in
any area zoned for single-family or two-family homes—even if they are residing in separate units
within the same building. Plaintiffs allege that this “has the effect of putting affordable housing in
the City off limits to persons on supervised release.” (Compl. ¶ 3.) Based on enforcement letters
sent out by the City in January 2024, at least 41 people residing in Rockford as of that date were
living in locations rendered noncompliant by the Amendment. (Id. ¶ 4 n.1.)
The legislative history submitted with the Complaint suggests that the City’s Department
of Law proposed the Amendment in response to a perceived “influx of sex offender parolees”
being placed in Rockford by the IDOC. (Compl. ¶ 15.) According to a report from a November
21, 2023 meeting of the City’s Zoning Board of Appeals, the definition of “Group Home for
Adjustment” had always been “intended to include those on parole and mandatory supervised
release,” but the prior text had been interpreted as permitting people with sex offense convictions
on supervised release to reside together in “multi-unit properties,” including three properties in
one of the City’s residential neighborhoods that “proposed to house up to three (3) parolees in
each unit of the 4-unit buildings.” (Compl. Ex. 3 [1-3] at 3.) At a meeting of the City Council’s
Code & Regulation Committee one week later, the City’s Legal Director Nicholas Meyer further
testified in favor of the additional restrictions, observing that “a number of individuals have been
released to the Rockford area from prison on mandatory supervised release,” and that many of
these individuals were “from outside Winnebago County.” (Compl. ¶ 16.) The Committee
recommended sustaining the Zoning Board’s approval of the Amendment, and it was formally
adopted a few days later. (Compl. Ex. 4 [1-4].)
III. Enforcement and Procedural History
Plaintiffs Do Not Pass Go LLC (“DNPG”) and Next Step Recovery Homes, Inc. (“Next
Step”) are corporate landlords who provide housing to individuals on supervised release in
Rockford. (Compl. ¶ 9.) As of February 2024, DNPG housed a total of seven tenants in two
residences in Rockford, both in single-family zoning districts. (Id. ¶ 19.) Next Step owns six
residences in Rockford, including three in single-family districts, that housed a total of 16 tenants.
(Id. ¶ 24.) Next Step (but not DNPG) is identified in the Complaint as a contractor for the State’s
ICRP initiative created in response to the Murphy injunction. (Id. ¶ 25.) The individual Plaintiffs,
Jason Riley and Kenneth Sims, were both released from prison in the last few years and are
currently on supervised release; as of February 2024, Riley was one of DNPG’s tenants and Sims
was one of Next Step’s. (Id. ¶¶ 30, 35.)
In January 2024, the City sent notices to DPNG and Next Step that their properties were
out of compliance with the newly amended Ordinance for housing more than one “sex offender
parolee . . . at each residence.” (Compl. ¶¶ 21, 26; see Compl. Ex. 2 [1-2] (January 2, 2024 notice
of violation from Legal Director Meyer to DNPG).) These notices threatened to issue citations to
DNPG and Next Step and fine them $750 per day per property for failing to comply. (Compl.
¶¶ 21, 27.)
In response, Plaintiffs filed this lawsuit in February 2024 [1]. The corporate Plaintiffs
alleged that the Ordinance was causing them “direct and immediate harm,” both by forcing them
to choose between evicting their current tenants or paying substantial fines, and—in Next Step’s
case—by causing IDOC to stop placing new ICRP participants in its properties, resulting in lost
revenue. (Compl. ¶¶ 22, 28–29.) They further alleged that enforcement of the Ordinance would
frustrate their “mission to provide affordable rental housing to persons on [mandatory supervised
release],” on the grounds that “[i]t is not economically feasible to have only one tenant” in
properties designed for multi-occupant use. (Id. ¶¶ 23, 29.) The individual Plaintiffs both alleged
that they were unable to afford their own housing, did not want to leave their current addresses
in Rockford, and had been unable to find alternative accommodations. (Id. ¶¶ 31–34, 37–39.)
Plaintiffs brought a single count under the Fourteenth Amendment’s Equal Protection Clause and
sought injunctive relief and damages on behalf of themselves and a putative class of “[a]ll
individuals currently or in the future on Mandatory Supervised Release who reside or seek to
reside in the City of Rockford, Illinois.” (Id. ¶¶ 50, 58–60.)
Plaintiffs quickly moved for a preliminary injunction against Rockford’s enforcement of the
amended Ordinance [12] and for certification of an injunctive class under Rule 23(b)(2) [13]. The
City moved for an extension of time to respond [17], which the court granted in part [18] over
Plaintiffs’ objections [19]. At an April 29, 2024 hearing, the City confirmed through counsel that it
would not be enforcing the Ordinance against current residents, and the court stayed Plaintiffs’
preliminary injunction and class certification motions accordingly [26]. The City filed the instant
motion to dismiss [27] (hereinafter “Mot.”) the following month.
LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain “sufficient
factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’ ” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
When reviewing a motion to dismiss, the court must accept all well-pleaded factual allegations in
the complaint as true and draw all reasonable inferences in favor of the plaintiff. Tamayo v.
Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). The court may also consider documents
attached to the complaint, documents that are critical to the complaint and referred to in it, and
information properly subject to judicial notice. Geinosky v. City of Chicago, 675 F.3d 743, 745
n.1 (7th Cir. 2012).
DISCUSSION
I. Level of Scrutiny
The Equal Protection Clause of the Fourteenth Amendment prevents state actors from
denying anyone within their jurisdiction “the equal protection of the laws.” U.S. Const. amend.
XIV. Legislation challenged under the Equal Protection Clause is subject to heightened scrutiny
if it “targets a suspect class or addresses a fundamental right.” St. John's United Church of Christ
v. City of Chicago, 502 F.3d 616, 637 (7th Cir. 2007). Otherwise, “[t]he general rule is that
legislation is presumed to be valid and will be sustained if the classification drawn by the statute
is rationally related to a legitimate state interest.” Id. (citing City of Cleburne v. Cleburne Living
Ctr., 473 U.S. 432, 440 (1985)). Plaintiffs concede that the amended Ordinance, which draws
distinctions based on criminal-justice supervision status rather than any judicially recognized
suspect class, is subject to rational-basis review.3
The rational-basis test requires the court to consider (1) whether the government’s stated
aim is legitimate, and (2) whether a rational relationship exists between this aim and its chosen
approach. Halgren v. City of Naperville, 577 F. Supp. 3d 700, 737 (N.D. Ill. 2021), aff'd sub nom.
Lukaszczyk v. Cook Cnty., 47 F.4th 587 (7th Cir. 2022). At the motion-to-dismiss stage, plaintiffs
facing rational-basis review must “allege facts sufficient to overcome the presumption of rationality
that applies to government classifications.” St. John's United, 502 F.3d at 639 (citing Wroblewski
v. City of Washburn, 965 F.2d 452, 460 (7th Cir. 1992)). This is a “very significant burden” to
meet in the land-use context. Discovery House, Inc. v. Consolidated City of Indianapolis, 319
F.3d 277, 283 (7th Cir. 2003) (citing Forseth v. Village of Sussex, 199 F.3d 363, 371 (7th Cir.
2000)). The Seventh Circuit has repeatedly emphasized that “the federal courts are not zoning
boards of appeal” and that “absent a fundamental right or a suspect class, for a viable equal

3 The City argued in its opening brief that Plaintiffs’ claims should be evaluated
under the “class-of-one” line of cases stemming from Village of Willowbrook v. Olech, 528 U.S.
562, 564 (2000). That doctrine concerns Equal Protection challenges to discrete state actions
that single out individuals or discrete groups of individuals “for an illegitimate or irrational reason.”
Monarch Beverage Co. v. Cook, 861 F.3d 678 (7th Cir. 2017). As the City concedes on reply,
however, this theory is inapplicable where the plaintiff “challenges a statute or ordinance that by
its terms imposes regulatory burdens on a specific class of persons”—here, individuals on
supervision. Id. at 682. The starting point for this court’s inquiry is Cleburne and its progeny, not
Olech.
protection claim in the land-use context, the plaintiff must demonstrate governmental action wholly
impossible to relate to legitimate governmental objectives.” Id. (cleaned up).
While rational-basis review is, thus, lenient, it does not give the government completely
unfettered discretion, even with respect to zoning. Plaintiffs rely heavily on the Supreme Court’s
Cleburne decision, a factually similar case involving the siting of group homes in residential
neighborhoods. The ordinance at issue in Cleburne required special-use permits for group homes
serving adults with intellectual disabilities. 473 U.S. at 436–37. After the city denied the plaintiff’s
permit application for such a home, the plaintiff sued to invalidate the ordinance under the Equal
Protection Clause. Id. That effort failed at the district court, but the Fifth Circuit reversed on
appeal, holding that intellectual disability should be considered a “quasi-suspect classification”
and that the city’s ordinance failed intermediate scrutiny. Id. at 437–38. The Supreme Court
granted certiorari and sustained the result on different grounds: while intellectual disability was
not a constitutionally suspect class, the ordinance could not even pass the more permissive
standard of rational-basis review. Id. at 435. Under this standard, the Court held, “[t]he State
may not rely on a classification whose relationship to an asserted goal is so attenuated as to
render the distinction arbitrary or irrational,” and that “some objectives—such as a bare desire to
harm a politically unpopular group—are not legitimate state interests.” Id. at 446–47 (cleaned
up). The city had failed to articulate “any rational basis” for how the plaintiff’s project would
threaten its legitimate interests: while local officials had cited concerns such as neighborhood
safety and overcrowding, there was no evidence that these risks were any greater for a home for
intellectually disabled residents than for a similarly sized project for abled residents (such as an
apartment complex or dormitory) that would be permissible under the zoning code. Id. at 448–
50. Rather, the record suggested that the zoning denial was motivated solely by neighbors’
“irrational prejudice” against the project’s intended residents—and this, standing alone, could not
supply a valid basis for governmental discrimination. Id. at 450.
The precise extent of Cleburne’s holding is a matter of dispute. It can be read as endorsing
a “more searching” form of rational-basis review applicable to laws that “exhibit[] . . . a desire to
harm a politically unpopular group.”4 Lawrence v. Texas, 539 U.S. 558, 580 (2003) (O’Connor,
J., concurring). It has also been interpreted more narrowly to stand for the “uncontroversial
proposition” that “majority preferences are not a legitimate reason to treat classes of people
differently.” Minerva Dairy, Inc. v. Harsdorf, 905 F.3d 1047, 1057–58 (7th Cir. 2018). Whatever
its scope, though, Cleburne illustrates that—even under rational-basis review—“courts examine,
and sometimes reject, the rationale offered by government for the challenged discrimination.”
Baskin v. Bogan, 766 F.3d 648, 654 (7th Cir. 2014).
II. Justifications for the Amended Ordinance
With these principles in mind, the court turns to Defendant’s justifications for its
Amendment. The City essentially offers two rationales in its motion to dismiss: first, that the
Amendment helps preserve single-family and two-family neighborhoods in Rockford for family
use, and second, that allowing housing for individuals on supervision into these neighborhoods
might depress nearby property values.5 Both of these interests are legitimate on their face. It is
well-established that limiting the number of unrelated persons who may live in a dwelling is a
permissible use of the zoning power.6 See United States v. Village of Palatine, 37 F.3d 1230,

4 This standard has been variously described as “ ‘heightened rational-basis review,’
or—more colorfully—‘rational basis with bite,’ ‘rational basis with teeth,’ or ‘rational basis plus.’ ”
Halgren, 577 F. Supp. 3d at 752 (citing Bishop v. Smith, 760 F.3d 1070, 1099 (10th Cir.
2014) (Holmes, J., concurring)).

5 The City frames these rationales as three: (1) maintaining the family character of
R-1 and R-2 zones, (2) protecting property values in these neighborhoods, and (3) preserving
housing stock for families seeking to live in the city. (See Mot. at 7–10.) The court notes, however,
that the first and third justifications are not meaningfully distinct. If the City had no preference
between family and non-family occupants in its low-density residential areas, it would not feel the
need to “preserve” housing in these areas for the former.
6 Plaintiffs dispute this point in passing, citing the traditional principle that “[z]oning
is concerned with the use of a piece of land, not with the identity of the person who owns or
occupies it.” (Pl.’s Opp. [30] at 4.) But this principle is not strictly followed in many jurisdictions
1234 n.1 (7th Cir. 1994) (Manion, J., concurring) (citing Village of Belle Terre v. Boraas, 416 U.S.
1 (1974)). And a central purpose of any municipality’s zoning code is to “conserve the taxable
value of city land.” C.L. for Urb. Believers v. City of Chicago, 342 F.3d 752, 766 (7th Cir. 2003).
The City must also show, however, that the Amendment is a rational means of achieving
these ends. Halgren, 577 F. Supp. 3d at 737. And its first argument about preserving “family”
neighborhood composition runs into the same problem presented in Cleburne: it is not clear that
this interest is in any way furthered by drawing distinctions based on supervision status. As
Plaintiffs point out, the City already prohibits more than three unrelated people from living together
as part of the same “household” in most properties located in single- and two-family zones. See
Rockford, Ill. Zoning Ordinance § 91-046 (defining “family” to include “up to but not exceeding 3
persons not so related”). This generally applicable restriction is undisputedly constitutional, and
Plaintiffs are not challenging it here—only the more specific prohibition on two or more individuals
on supervision living at the same address in these districts. Both of Plaintiff DNPG’s properties,
and at least one of Plaintiff Next Step’s,7 are compliant with the three-person limit; if each of these
properties’ residents “were not [on supervision], but the home was the same in all other respects,
its use would be permitted under the city’s zoning ordinance.” Cleburne, 473 U.S. at 449. If the

today, and in any event is not determinative as to whether a muncipality’s stated justifications for
its ordinance survive rational-basis review. See 3 Arden H. Rathkopf, Daren A. Rathkopf &
Edward H. Ziegler, Jr., Rathkopf’s The Law of Zoning and Planning § 60:19 & n.13 (4th ed.) (citing
cases that refused to apply use/user distinction to “zoning restrictions on household composition
in single-family neighborhoods”).
7 According to the Complaint, DNPG owns two properties in R-1 zones in Rockford,
one of which, as of February 2024, housed two tenants on supervised release and the other, three
such tenants. (Compl. ¶ 19.) Next Step owns three properties in R-1 zones, which respectively
housed six, five, and two tenants. Assuming that all of these individuals are unrelated, it is not
fully clear whether the first two of Next Step’s properties, which appear to exceed the generally
applicable three-unrelated-persons “household” limit, would still be out of compliance if the
Amendment’s “one-per-address” restriction for individuals on supervision were lifted. The
Complaint does not address whether these properties have been granted variations or are
“nonconforming uses” grandfathered in from prior regulations. See Rockford, Ill. Zoning
Ordinance §§ 64-001, 80-001-A. Even if they were not, though, Plaintiffs have conceded that
they are not challenging the Ordinance’s three-unrelated-persons limit.
City’s aim is to preserve its R-1 and R-2 zones for “families,” it offers no coherent reason why it
needs to distinguish between unrelated individuals on supervision and unrelated individuals not
on supervision to achieve this goal. See id. at 450 (“[W]hy this difference warrants a density
restriction that others need not observe is not at all apparent.”).
That leaves the City’s second justification: the purported effects of “group homes for
adjustment” on local property values. Unlike its first argument, this one presents at least a
coherent theory for singling out individuals on supervision. In Defendant’s view, it is “a matter of
very rudimentary common sense” that these individuals “present a greater threat to the public’s
perception of family housing in the City than any other potential set of cohabitating occupants,
such that a limitation on their occupancy is a wise protection of Citywide property values in R-1-
and R-2-zoned neighborhoods.” (Def.’s Reply [33] at 8, 10.) Plaintiffs argue that Defendant has
presented no data to back up this point, but the City counters that this misstates its burden at the
motion-to-dismiss stage: as it argues, it need only “hypothesize” a rational basis for its policy, and
is not required to back this up with concrete proof. 145 Fisk, LLC v. Nicklas, 986 F.3d 759, 771
(7th Cir. 2021) (citing Flying J Inc. v. City of New Haven, 549 F.3d 538, 547 (7th Cir. 2008)); see
Roberts v. Village of Shorewood, No. 00 C 6854, 2002 WL 1331999, at *6 (N.D. Ill. June 17, 2002)
(holding that “fears about possible effects on property values . . . cannot be found to be irrational,”
even if later proved “inaccurate”).
As this court reads Seventh Circuit caselaw, however, it does not establish that a
defendant subject to rational-basis review can prevail at the motion-to-dismiss stage by offering
any “hypothetical” justification for its policy whatsoever. The cases Defendant cites for this
proposition stem from Wroblewski v. City of Washburn, in which the Seventh Circuit considered
the “perplexing situation” that arises when the defendant-friendly standard of rational-basis review
under the Equal Protection Clause meets the plaintiff-friendly pleading standard under Rule
12(b)(6). 965 F.2d 452, 459 (7th Cir. 1992). As the Wroblewski court held,
[t]he rational basis standard, of course, cannot defeat the plaintiff's benefit of the
broad Rule 12(b)(6) standard. The latter standard is procedural, and simply allows
the plaintiff to progress beyond the pleadings and obtain discovery, while the
rational basis standard is the substantive burden that the plaintiff will ultimately
have to meet to prevail on an equal protection claim.
Id. at 459–60. Thus, while a “presumption of rationality” applies to a defendant’s policy at the
motion-to-dismiss stage, plaintiffs can overcome this presumption if their well-pleaded facts, taken
as true, suggest that “the facts on which the legislature may have relied in shaping the
classification could not reasonably be conceived to be true by the governmental decisionmaker.”
Id. at 459 (cleaned up). The Seventh Circuit ultimately affirmed dismissal of the Wroblewski
plaintiff’s claim, but this was because the plaintiff had failed to meet Rule 12(b)(6)’s general
pleading standard of alleging facts beyond the mere “conclusionary assertion that the policy is
‘without rational basis’ ”—not because the defendant’s hypothetical conjectures automatically
trumped the plaintiff’s well-pleaded assertions. Id. at 460.
While subsequent Seventh Circuit decisions have held that “[s]ince hypothesis is not proof,
this test . . . can often be applied in advance of discovery,” Flying J Inc., 549 F.3d at 546 (emphasis
added) (quoting Lauth v. McCollum, 424 F.3d 631, 634 (7th Cir. 2005)), the court does not read
Wroblewski to suggest that this must always be the case. Otherwise, every equal protection
lawsuit would be resolved at the motion-to-dismiss stage by ruling for the defendant as a matter
of law, without the benefit of further discovery to test the merits of their position. In other words,
if rational basis review “is not a ‘rubber stamp,’ ” then “there must be a role for actual fact-finding,
and it must be possible for a plaintiff to prove facts to overcome the presumption of
constitutionality.” Halgren, 577 F. Supp. 3d at 739 (citing Pittsfield Dev., LLC v. City of Chicago,
No. 17 C 1951, 2017 WL 5891223, at *10 (N.D. Ill. Nov. 28, 2017)).
In particular, Cleburne satisfies this court that more factual development may be warranted
in cases, like this one, involving challenges to laws that single out a “politically unpopular group”
for disparate treatment. Cleburne, 473 U.S. at 447 (citation omitted). On its face, the Amendment
applies to all individuals on any form of criminal-justice supervision, including supervised release,
probation, and work release. More specifically, legislative history strongly suggests that it was
passed as a specific response to IDOC’s placement of individuals with sex offense convictions in
Rockford’s residential neighborhoods. (Compl. Ex. 3 at 3 (comment by Zoning Board of Appeals
about potential project that would result in “up to 36 sex offender parolees . . . living on the same
block”).).
These individuals are undoubtedly a disfavored group, but the City defends its regulation
on the claimed basis that any concerns about the potential impacts of such individuals on its
neighborhoods are well-founded, unlike the fears of the “harmless group of people” expressed in
Cleburne. Milner v. Apfel, 148 F.3d 812, 817 (7th Cir. 1998). This distinction between people
with disabilities and people with criminal records finds at least some support in the caselaw. Id.
(declining to extend Cleburne to invalidate state law denying benefits to individuals acquitted of
murder by reason of insanity, on the grounds that “[m]urderers are not harmless people,” but are
“dangerous, and rationally feared”). But the central holding of Cleburne is that a municipality’s
justification for differential treatment must be based on more than mere “irrational fear” by a
“majority of voters.” Id. (citing Cleburne, 473 U.S. at 448–50.) And without the benefit of any
empirical data to test whether Plaintiffs’ homes have actually hurt property values in Rockford’s
neighborhoods, it is difficult to discern whether the City’s purported concerns are in fact “rational.”
Plaintiffs, to the contrary, have alleged that group homes for individuals under supervision
pose no meaningful threat to public safety or order.8 The Complaint asserts that there were no
“problems or negative affects [sic] arising from the co-habitation of individuals on [supervised

8 While these allegations do not directly address the City’s concerns about property
values, the two issues are closely linked. The effects of a given development on local property
values depend in key part on the public’s perception of that development’s impacts on the
surrounding area. And although it is of course possible that property values might drop even in
the absence of any verifiable impacts, it is harder to characterize such a change as “rational” if it
is based on nothing more than preconceived notions about the population served. See Cleburne,
473 U.S. at 449 (noting that “mere negative attitudes, or fear . . . are not permissible bases” for
differential treatment).
release] in Rockford” before the Amendment’s passage. (Compl. ¶ 17.) It also cites evidence
that “allowing people on [supervised release] to live in the same building as one another [does
not] contribute[] to criminality,” and may even have the opposite effect.9 (Id. ¶ 44.) The Barnes
court cited these same pieces of evidence in finding that the State of Illinois’ own “One-Per-
Address” statute violated equal protection, even under rational-basis review. See Barnes, 529 F.
Supp. 3d at 798 (citing findings that “permitting registrants to live together reduces recidivism and
improves supervision”). It held, accordingly, that the State had identified “no legitimate
government interest, such as public safety or rehabilitation,” that could justify the One-Per-
Address Statute’s restriction on the availability of host sites. Id. at 797. The Barnes court’s factual
findings do not directly address the City’s purported concern here—whether, setting aside any
actual risk of recidivism, the perceived risk might affect neighborhood property values. But they
at least suggest that Plaintiffs have met their burden of alleging sufficient facts to warrant further
discovery on the rationality of Defendants’ policy. Cf. Pittsfield Dev., 2017 WL 5891223, at *11
(declining to dismiss substantive due process claim based on defendant’s “hypothesized,
unsubstantiated rational bases surmised entirely without the benefit of fact discovery,” where
plaintiff’s allegations “raise[d] the reasonable inference that the [challenged] Ordinance was
arbitrary in nature”).
To this effect, at least some other courts have also found zoning restrictions on housing
for currently or formerly incarcerated persons lacking in any rational basis. In Bannum, Inc. v.

9 The first is a 2003 report from the Minnesota Department of Corrections, which
found that housing offenders “in close proximity to one another” offered benefits in the form of
“[c]loser supervision” and greater mutual accountability. (Id. ¶ 45 (citing Minn. Dep’t of Corr.,
Level Three Sex Offender Residential Placement Issues 4, 8 (Jan. 2023),
https://mn.gov/doc/assets/Lvl%203%20SEX%20OFFENDERS%20report%202003%20(revised
%202-04)_tcm1089-272828.pdf).) The second is the testimony of a general manager of an Illinois
transitional housing program given in the Barnes case, stating that “housing registrants at the
same address allows for more effective (and cost-effective) law enforcement oversight” and “also
allows registrants to police one another and share resources to better support themselves, which
ultimately helps them focus on the future and reduces recidivism.” (Id. ¶ 46 (citing [33] in Barnes
v. Jeffreys, No. 20 C 2137 (N.D. Ill. July 2, 2020).)
City of Louisville, the Sixth Circuit affirmed a summary judgment ruling that a zoning ordinance
requiring special-use permits for housing “meant to facilitate the reintegration of federal offenders
into society” violated equal protection. 958 F.2d 1354, 1355–56 (6th Cir. 1992). The city argued
before the district court that “the occupants of [this housing] are more likely to commit crimes than
a person never having been convicted of a crime,” but presented “no evidence” in support of this
position, and its own expert witness “found that literature on the topic was inconclusive.” Id. at
1360. Absent “some data reflecting the extent of the danger,” the Sixth Circuit found, the district
court did not clearly err in finding the city’s public-safety justification “so attenuated as to render
the distinction arbitrary or irrational.” Id. at 1361 (citing Cleburne, 473 U.S. at 446).
The Seventh Circuit does not appear to have addressed this question, and at least the
Eighth and Eleventh Circuits have come out the other way. See Bannum, Inc. v. City of St.
Charles, 2 F.3d 267, 272 (8th Cir. 1993) (finding “Cleburne . . . inapposite” since “[i]t is not
irrational for the City to believe that recidivism could be a problem with some persons served by
half-way houses”); Bannum, Inc. v. City of Fort Lauderdale, 157 F.3d 819, 823–24 (11th Cir. 1998)
(same). What all of these decisions had in common, however, was a more developed factual
record than currently exists here. See City of Louisville, 958 F.2d at 1356–58 (preliminary
injunction and judgment entered after years of litigation over related zoning regulations); City of
St. Charles, 2 F.3d at 270 (decided at summary judgment); City of Fort Lauderdale, 157 F.3d at
822 (same). The same is true of Cleburne itself, in which the Supreme Court found the municipal
defendant’s policy irrational based on a record generated at an initial public hearing and
subsequent bench trial. See Cleburne Living Ctr., Inc. v. City of Cleburne, 726 F.2d 191, 194 (5th
Cir. 1984), aff'd in part, vacated in part, 473 U.S. 432 (1985). All of these courts were able to
review competing evidence on whether public safety (and by implicit extension, property values)
would actually be endangered by siting transitional or supportive housing in residential
neighborhoods. Without the benefit of further discovery, this court is ill-equipped to do the same.
Before concluding, the court pauses to further address the bearing of Murphy, Barnes,
and other recent challenges to the State of Illinois’s residency restrictions for individuals with sex
offense convictions on this case. Plaintiffs urge this court to find the City’s amended Ordinance
suspect for the same reason recognized in this earlier litigation—that it contributes to the
prolonged incarceration of indigent prisoners with sex-offense convictions. As they argue, the
Amendment “essentially reinstates the One-Per-Address restrictions that have twice been found
unconstitutional” in Barnes (as to individuals on supervised release) and Potkaj (as to individuals
on probation). (Pls’. Opp. [30] at 14.)
The court declines this invitation. While Barnes and Potkaj are relevant to the extent they
found “one-per-address” restrictions on individuals serving supervised-release or probation terms
for sex offenses unsupported by any verifiable policy concern, they are not binding on this court
and do not mandate an equivalent finding as to the ultimate constitutionality of the City’s policy.
The classification at issue in those cases (between those able to afford compliant host sites and
those unable to do so) is distinct from the one presented here (between those under supervision
and those not under supervision). Moreover, the state-level restrictions that they invalidated were
passed by a different level of government, in response to a different set of policy considerations.
That the State cannot rationally restrict individuals on supervision from living together at the same
address anywhere in Illinois does not answer whether a single municipality may rationally pass
an equivalent restriction within its own borders. Plaintiffs’ concerns are not frivolous: if every
municipality in Illinois were to pass an equivalent restriction to Rockford’s, the One-Per-Address
Statute struck down in Barnes and Potkaj would be reconstituted as a patchwork quilt, and the
State would again struggle to comply with its constitutional mandate of finding suitable host sites
for prisoners who have served their terms. But precisely how the State and its subdivisions
choose to coordinate compliance with this mandate is an issue of internal governance well beyond
the narrow inquiry before this court—whether Rockford, standing alone, has articulated a rational
basis for restricting individuals on supervision from living together in its neighborhoods.
The court does not answer that question here. It only holds that Plaintiffs have, at this
stage in the proceedings, “allege[d] facts sufficient to overcome the presumption of rationality”
that applies to the Citys Amendment. St. John’s United, 502 F.3d at 639. Further discovery will
help clarify whether the City’s concerns about Plaintiffs’ properties (and others like them) are
grounded in fact. But this discovery will undoubtedly be both intensive and expensive, and the
court also encourages the parties to continue negotiating towards a mutually amicable resolution
that balances the City’s needs with those of Plaintiffs and the State.
CONCLUSION
Defendant's Motion to Dismiss [27] is DENIED.
ENTER:

Dated: September 6, 2024 Sebrere 0
REBECCA R. PALLMEYER
United States District Judge

18

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10645650. Public record. Not legal advice.