VICTORIA KATHREIN and MICHAEL L. KATHREIN, Plaintiffs-Appellants,
CITY OF EVANSTON, ILLINOIS, et al, Defendants-Appellees
Argued: September 10, 2013.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:08-cv-00083 -- Ronald A. Guzman, Judge.
VICTORIA KATHREIN, Plaintiff - Appellant, Pro se, Chicago, IL.
MICHAEL L. KATHREIN, Plaintiff - Appellant, Pro se, Chicago, IL.
For CITY OF EVANSTON, ILLINOIS, LORRAINE H. MORTON, Mayor, CHERYL WOLLIN, Alderwoman, 1st Ward, STEVEN J. BERNSTEIN, Alderman, 4th Ward, DELORES A. HOLMES, Alderwoman, 5th Ward, Defendants - Appellees: Brandon DeBerry, Attorney, A & G LAW LLC, Chicago, IL.
Before KANNE, WILLIAMS, and TINDER, Circuit Judges.
Tinder, Circuit Judge.
This appeal is the second occasion for our court to consider the suit by Michael and Victoria Kathrein against the City of Evanston, its mayor, and nine aldermen, pursuant to 42 U.S.C. § 1983. Originally, the district court dismissed the case for want of subject matter jurisdiction. A panel of this court then affirmed in part, reversed in part, and remanded for further proceedings. But in light of an intervening decision of this court sitting en banc, the district court revisited the question of
subject matter jurisdiction and dismissed the remaining claims for a second time. Because the decision of the en banc court did effect an intervening change in the law, we agree with the district court and now affirm. We also decline to revisit the part of the district court's original decision tat we have already affirmed, despite the change in the law, because the Kathreins failed to preserve that issue for review.
The Kathreins first filed suit in January of 2008, claiming that Evanston's Affordable Housing Demolition Tax violates the Fifth and Fourteenth Amendments of the United States Constitution, as well as provisions of the Illinois Constitution and other state law. The facts leading to this lawsuit and the first appeal were described in this court's initial panel decision. See Kathrein v. City of Evanston, Ill., 636 F.3d 906, 909-10 (7th Cir. 2011). To summarize, the Demolition Tax requires, with certain explicit exceptions, a property owner seeking to demolish any residential building to first pay the City $10,000 per building, or $3,000 per residential unit (whichever is greater). The ordinance establishing the tax states that the measure is designed to " provide a source of funding for the creation, maintenance, and improvement of safe and decent affordable housing in the City of Evanston." Evanston, Ill., Code § 4-18-1. It accomplishes this goal by directing ...