No Equal Protection claim in village’s refusal to assume private water system

by Gary Taylor

Susan Srail, v. Village of Lisle, IL
(Federal Seventh Circuit Court of Appeals, December 7, 2009)

A small group of residents of a subdivision in the Village of Lisle, Illinois brought a class action suit against the Village, claiming a violation of their rights under the Equal Protection clause of the US Constitution.

The Oak View subdivision was built in the 1950s, and in 1956, the developer created its own water and sewer utility to serve Oak View residents. Since that time, a privately owned utility company has provided Oak View residents with their water needs. The Village of Lisle, Illinois, was incorporated in 1956. In 1967, Lisle developed its own water system. Prior to that time, most residents received their water through private, underground wells. Lisle’s system grew gradually as developers built new housing developments, installing water mains that the developers then donated to Lisle. In 1980, Lisle purchased one of the two privately owned water companies operating in town, which also contributed to the growth of the Lisle system. Lisle did not purchase the privately owned water company operating in Oak View. The Lisle system received its water supply from the DuPage Water Commission (“DWC”), which provided water from Lake Michigan to the utilities with which it contracted. Lisle would then deliver this water to its customers. The water company serving Oak View entered into a similar contract with DWC to receive its water; however, because of difficulties in transporting the water from DWC to Oak View, Lisle entered into an agreement with DWC and the water company in 1995 providing that Lisle would deliver the water purchased by the water company from DWC’s facilities to Oak View. In 2002, Illinois-American Water Company (“IAWC”) purchased the water company that operated in Oak View, becoming the exclusive operator of the water system in the subdivision. Under both IAWC and its predecessor, Oak View’s water system operated with pressure insufficient to extinguish fires. The concern over water pressure sparked the litigation in this case.  The Oak View litigants claimed that Lisle impermissibly discriminated against them by expanding its water services to other subdivisions within Lisle, but refusing to expand its services to Oak View despite the problems with water pressure.

The Seventh Circuit restated the settled law that an equal protection violation occurs when a regulation draws distinctions among people based on a person’s membership in a “suspect” class (suspect classes include race, alienage, and national origin) or when the government action denies of a fundamental right (fundamental rights include freedom of speech and religion. With both suspect classes and denials of fundamental rights, the government’s justification for the regulation must satisfy the strict scrutiny test to pass muster under the Equal Protection Clause.  The court found neither scenario present in this case.  The residentsare not members of a suspect class.  Likewise, the Constitution creates no positive entitlement to fire protection, nor is the right to continued municipal water service a fundamental right. 

In the absence of deprivation of a fundamental right or the existence of a suspect class, the proper standard of review is rational basis. Rational basis review requires the plaintiff to prove that (1) the government intentionally treated plaintiffs differently from others similarly situated; (2) this difference in treatment was caused by the plaintiffs’ membership in the class to which they belong; and (3) this different treatment was not rationally related to a legitimate state interest. Lisle asserted that it had an economic reason for its refusal to extend its system into Oak View; i.e., that the costs associated with an extension, coupled with its assessment of resident disinterest and the unlikely success of an expansion, provided it a rational basis for its decision. Lisle pointed to the fact that an expansion into Oak View would cost it approximately four million dollars.  Lisle would normally recoup the costs of an expansion by passing these costs on to residents who connect to the Lisle system; however, Lisle surveyed nineteen Oak View homeowners who lived adjacent to existing Lisle mains. Out of the nineteen surveyed, only one expressed interest in connecting to the Lisle system.  Appellants claim that Lisle’s failure to survey all of the Oak View residents made its reliance on the nineteen responses unreasonable.  The court confirmed, however, that rational basis review, “courts are compelled . . . to accept a legislature’s generalizations . . . .”  Considering that Lisle had a rational basis for refusing to assume the subdivision’s private system into the municipal system, the Seventh Circuit affirmed the judgment for Lisle.