MacDonald v. City of Chicago, PLAINTIFFS-APPELLEE

Citation243 F.3d 1021
Decision Date12 March 2001
Docket NumberPLAINTIFFS-APPELLEE,Nos. 98-3836,DEFENDANT-APPELLAN,98-3912,CROSS-APPELLANTS,CROSS-APPELLEE,s. 98-3836
Parties(7th Cir. 2001) ROBERT MACDONALD, CAREN C. THOMAS AND WINDY CITY HEMP DEVELOPMENT BOARD,, v. CITY OF CHICAGO,& 99-1429
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 C 5266--David H. Coar, Judge. [Copyrighted Material Omitted] Wayne B. Giampietro, Witwer, Poltrock & Giampietro, Chicago, IL, Richard L. Wilson (argued), Orlando, FL, for plaintiff-appellee.

Lawrence Rosenthal (argued), Benna R. Solomon, Office of the Corporation Counsel, Chicago, IL, for defendant-appellant.

Before Coffey, Manion, and Rovner, Circuit Judges.

Manion, Circuit Judge.

Robert MacDonald sued the City of Chicago seeking a declaration that the city's ordinance permitting parades violates the First Amendment, and a permanent injunction barring its enforcement. The district court concluded that although the ordinance did not provide the City with unlawful discretion to deny permits, it was unconstitutional because it lacked the procedural safeguards set forth in Freedman v. Maryland, 380 U.S. 51 (1965). Accordingly, the district court enjoined enforcement of the ordinance. The City of Chicago appealed. MacDonald filed a cross-appeal, challenging the district court's conclusion that the ordinance did not grant the City unconstitutional discretion.

While the appeal was pending, the City of Chicago amended the ordinance, and then it filed a Rule 60(b)(5) motion in the district court asking the court to vacate its injunction. The district court denied the motion to vacate, concluding that the amendments to the ordinance did not cure the constitutional defects. The City of Chicago appealed from that decision, and we consolidated both appeals. We also granted Caren Cronk Thomas and the Windy City Hemp Development Board leave to substitute as plaintiff-appellees/cross-appellants in the place of Robert MacDonald, who had since died.1 We now conclude that the ordinance does not provide the City with unconstitutional discretion to review parade-permit applications. We further conclude that the ordinance is a valid time, place, and manner restriction, and that the ordinance's challenged procedural safeguards are constitutional. Therefore, we REVERSE the district court's declaration that the ordinance is an unconstitutional prior restraint of speech.

I. Background

Robert MacDonald was a vocal advocate for the legalization of marijuana. In order to spread his message, MacDonald organized various events, including marches and political rallies. In June 1997, MacDonald applied for a parade permit pursuant to Chicago Ordinance 10-8-330(b), which requires anyone who plans to conduct a parade on any public street or sidewalk to obtain a permit from the Commissioner of the Chicago Department of Transportation ("Commissioner"). In his application, MacDonald requested a permit to hold a march on August 23, 1997 in downtown Chicago, marching through the "Loop,2" up Michigan Avenue to Chicago Avenue, returning south along Michigan Avenue to the Loop. The parade was to be held in conjunction with a political rally in Grant Park, which was the subject of another lawsuit. MacDonald v. Chicago Park Dist., 132 F.3d 355 (7th Cir. 1997) (denying MacDonald's request for a preliminary injunction preventing the park district from denying requests for park permits).

The Commissioner denied MacDonald's application for a parade permit, concluding that:

The proposed activity will substantially and unnecessarily interfere with traffic; there are not available a sufficient number of peace officers to police and protect participants; and the concentration of things at the assembly and along the route will prevent proper fire and police protection and ambulance service.

The Commissioner's cited justifications derive from other portions of Chicago's ordinance, particularly subsection (h), which requires the Commissioner to issue a parade permit when he finds that:

The proposed activity will not substantially or unnecessarily interfere with traffic in the area contiguous to the route;

There are available at the time of the parade, public assembly or athletic event a sufficient number of peace officers to police and protect lawful participants in the activity;

The concentration of persons, animals, vehicles, or things at the assembly and disbanding areas and along the parade or athletic event route will not prevent proper fire and police protection or ambulance service;

Chicago Ordinance, sec. 10-8-330(h).

After the Commissioner denied MacDonald's parade-permit application, MacDonald filed a verified complaint seeking declaratory and injunctive relief against the City of Chicago; his complaint, brought pursuant to 28 U.S.C. sec. 1983, alleged a facial challenge to portions of the City's parade permitting ordinance, claiming violations of the First Amendment. After full briefing on MacDonald's motion for a preliminary injunction, the parties reached an agreement allowing MacDonald to conduct a more limited parade than the one he originally sought. The district court then denied the motion for a preliminary injunction as moot.

But the dispute did not end there. On January 8, 1998, MacDonald applied for a parade permit to conduct a parade on May 9, 1998 at 11:00 a.m. following a route virtually identical to the one he had applied for in August 1997. The Commissioner denied this application for the same reasons he denied MacDonald's first application, but the Commissioner also suggested an alternative parade route. MacDonald apparently was not satisfied with the proposed alternate route, and he again requested a preliminary injunction. The parties, however, once more settled their differences, and MacDonald withdrew his request for preliminary relief.

The district court then considered the parties' cross-motions for summary judgment on the merits of MacDonald's First Amendment claim for declaratory and permanent injunctive relief. The district court concluded that Chicago Ordinance 10-8-330 violated the First Amendment because, even though it did not confer upon the Commissioner unfettered discretion, it required the Commissioner to consider whether a sufficient number of police officers would be available to protect the participants, and this, the court believed, required the Commissioner to consider the content of the marchers' speech. Accordingly, the district court concluded that the ordinance was an unconstitutional content-based regulation of speech. The district court further held that the ordinance constituted a prior restraint, and as such must include the three constitutional safeguards set forth by the Supreme Court in Freedman v. Maryland, 380 U.S. 51 (1965), the third of which required the censor to bear the burden of going to court to suppress the speech and to bear the burden of proof once in court. The district court concluded that because the Commissioner did not bear those burdens, Chicago Ordinance 10-8-330 constituted an unconstitutional prior restraint. The district court then permanently enjoined enforcement of Section 10-8-330.

The City of Chicago appealed from the district court's decision, and MacDonald cross-appealed from the district court's conclusion that Section 10-8-330 did not provide the City of Chicago with unconstitutional discretion. After filing its notice of appeal, the City of Chicago also amended its ordinance, and then requested the district court to vacate its injunction pursuant to Rule 60(b)(5). The district court concluded that the amendments to the ordinance did not alter the result. The City of Chicago appealed from that decision, and we consolidated both appeals. We also granted Caren Cronk Thomas and the Windy City Hemp Development Board leave to substitute as plaintiff-appellees/cross-appellants because MacDonald had since died. See supra at 1023.

II. Analysis

We review de novo decisions on summary judgment as we do questions of constitutional law. Stokes v. City of Madison, 930 F.2d 1163, 1168 (7th Cir. 1991) ("All First Amendment issues, save the district court's acceptance of stipulated facts, we review de novo."). However, before considering the constitutionality of Chicago Ordinance 10-8-330, we must initially consider which version of the ordinance is properly before us: MacDonald argues that we should consider the constitutionality of both the ordinance in effect at the time he filed suit and the current version; whereas the City contends that any dispute over the original ordinance has been mooted by its subsequent modifications, and thus we should consider only the constitutionality of the modified ordinance.3

We agree with the City that the new ordinance is the only one before us on review. Any dispute over the 1997 version of the ordinance was mooted by the enactment of the new ordinance. Kremens v. Bartley, 431 U.S. 119, 129 (1977) ("[T]he enactment of the new statute clearly moots the claims of the named appellees."). But even as revised, the ordinance as interpreted by the district court continues to impact the plaintiffs. Thus, since a case or controversy remains, we will consider the constitutionality of Chicago's parade permitting ordinance as it now stands. Fusari v. Steinberg, 419 U.S. 379, 387 (1975) (holding that in considering the constitutionality of the challenged law, "[t]his Court must review the District Court's judgment in light of presently existing Connecticut law, not the law in effect at the time that judgment was rendered."). See, e.g., 11126 Baltimore Blvd., Inc. v. Prince George's County, Md., 58 F.3d 988, 991-92 (4th Cir. 1995) (reviewing only the constitutionality of the current version of the zoning ordinance, notwithstanding County's assertion that it intended to return to its prior...

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