602 F.2d 791 (7th Cir. 1979), 78-2432, Brown v. Scott

Docket Nº:78-2432.
Citation:602 F.2d 791
Party Name:Roy BROWN et al., Plaintiffs-Appellants, v. William J. SCOTT et al., Defendants-Appellees.
Case Date:August 02, 1979
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 791

602 F.2d 791 (7th Cir. 1979)

Roy BROWN et al., Plaintiffs-Appellants,

v.

William J. SCOTT et al., Defendants-Appellees.

No. 78-2432.

United States Court of Appeals, Seventh Circuit

August 2, 1979

Argued April 20, 1979.

Edward B. Arnolds, Chicago, Ill., for plaintiffs-appellants.

Ellen G. Robinson, Asst. State's Atty., Philip L. Bronstein, Asst. Corp. Counsel, Chicago, Ill., for defendants-appellees.

Before TONE and BAUER, Circuit Judges, and SOLOMON, Senior District Judge. [*]

TONE, Circuit Judge.

The Illinois Residential Picketing Statute, Ill.Rev.Stat. ch. 38, §§ 21.1-1 through 21.1-3 (1977), makes the picketing of residences or dwellings a misdemeanor, with certain enumerated exceptions. The district court held the statute constitutional, rejecting plaintiffs' equal protection, overbreadth, and vagueness arguments. We hold that the statute violates the equal protection clause of the Fourteenth Amendment as interpreted in Police Department

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of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972), and we therefore reverse the judgment.

Plaintiffs are the Committee Against Racism, an unincorporated association, and fifteen individual members of that association. The defendants, all sued in their official capacities, are various state, county, and city officials responsible for enforcing the statute. On September 7, 1977, fourteen of the individual plaintiffs engaged in peaceful picketing on the public sidewalk in front of the residence of Michael A. Bilandic, then Mayor of Chicago, to protest his policies concerning the busing of school children to achieve racial integration. They were subsequently charged with violating the residential picketing statute, pleaded guilty to the charge, and were sentenced to periods of supervision.

Plaintiffs later filed this action seeking a declaratory judgment that the statute is unconstitutional on its face and as applied, and an injunction to prohibit defendants from enforcing the statute. Ruling on cross-motions for summary judgment, the district court held the statute valid and entered a summary judgment in favor of the defendants, from which plaintiffs appeal.

I.

Defendants raise the issue of mootness in view of Mayor Bilandic's departure from office while the appeal has been pending. Although it is true that the affidavits filed by several of the plaintiffs express a specific desire to picket "Mayor Michael A. Bilandic's residence," they allege in the complaint that they "wish to engage again in residential picketing to demonstrate in Chicago neighborhoods their concern for racial equality, civil rights and racial integration . . . ." The mayoral change does not alter this intention or defendants' expressed intention to enforce the statute. Consequently, it cannot be said with assurance that there is no reasonable expectation that the alleged violation will recur. Nor have the interim events completely and irrevocably eradicated the effects of the alleged violation. County of Los Angeles v. Davis, --- U.S. ----, ----, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979). There remains "a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 122, 94 S.Ct. 1694, 1698, 40 L.Ed.2d 1 (1974), quoting Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941); See Allee v. Medrano, 416 U.S. 802, 810-811, 94 S.Ct. 2191, 40 L.Ed.2d 566 (1974). The case is therefore not moot.

II.

The substantive provisions of the challenged statute are as follows:

It is unlawful to picket before or about the residence or dwelling of any person, except when the residence or dwelling is used as a place of business. However, this Article does not apply to a person peacefully picketing his own residence or dwelling and does not prohibit the peaceful picketing of a place of employment involved in a labor dispute ( 1 or the place of holding a meeting or assembly on premises commonly used to discuss subjects of general public interest.

Ill.Rev.Stat. ch. 38, § 21.1-2.

In Police Department of Chicago v. Mosley, supra, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212, the Court held invalid a similar picketing prohibition containing a similar labor picketing exception. The Chicago ordinance before the Court in that case prohibited picketing at any school other than a

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school involved in a labor dispute. 2 The Court held that the ordinance violated the equal protection clause by allowing labor picketing while prohibiting other kinds of picketing when the former is not "clearly more disruptive than" the latter. 408 U.S. at 101, 92 S.Ct. 2286. The Court concluded,

The Equal Protection Clause requires that statutes affecting First Amendment interests be narrowly tailored to their legitimate objectives. . . . Far from being tailored to a substantial governmental interest, the discrimination among pickets is based on the content of their expression. Therefore, under the Equal Protection Clause, it may not stand.

Id. at 102, 92 S.Ct. at 2293-2294.

III.

The district court held, and defendants argue, that plaintiffs lacked standing to challenge the statute on the Mosley ground. The court read the labor exception as creating two sets of classifications: the classification of "place of employment" as opposed to "residence," and that of "place of employment involved in a labor dispute" as opposed to "place of employment not involved in a labor dispute." Plaintiffs, the court held, had standing to challenge only the first classification, which regulates only the location of picketing and does not violate the equal protection clause because it is supported by the compelling state interest of providing a meaningful forum for labor picketers. Recognizing that the second classification might deny some picketers equal protection under the Mosley holding, the court held that it did not so affect plaintiffs because they did not seek to picket a "place of employment." The district court reasoned that the plaintiff in Mosley had standing to challenge the ordinance because he sought to picket at a school, a location at which the ordinance permitted labor picketing, but plaintiffs here seek to picket "residences" rather than "places of employment," at which the statute permits labor picketing.

We think this interpretation of the statute is incorrect. Section 21.1-2 is concerned with "residences and dwellings," not with other places, and the brief article of the Illinois Criminal Law and Procedure Code of which that section is a part is concerned solely with "residential picketing." Although the second clause of the second sentence of § 21.1-2, the "place of employment" clause, does not use the words "residences and dwellings," it refers to such places and only such places. The only prohibition contained in the section or the article is against picketing "before or about the residence or dwelling of any person." Unless the "place of employment" clause refers to a place of...

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