796 F.2d 1547 (7th Cir. 1986), 84-2605, City of Watseka v. Illinois Public Action Council

Docket Nº:84-2605.
Citation:796 F.2d 1547
Party Name:CITY OF WATSEKA, County of Iroquois and State of Illinois, a Home Rule Municipality, and Ernest A. Grove, Mayor of Watseka, individually and in his Official Capacity, Plaintiffs-Appellants, v. ILLINOIS PUBLIC ACTION COUNCIL and American Civil Liberties Union, Defendants- Appellees.
Case Date:July 18, 1986
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1547

796 F.2d 1547 (7th Cir. 1986)

CITY OF WATSEKA, County of Iroquois and State of Illinois, a

Home Rule Municipality, and Ernest A. Grove, Mayor

of Watseka, individually and in his

Official Capacity, Plaintiffs-Appellants,

v.

ILLINOIS PUBLIC ACTION COUNCIL and American Civil Liberties

Union, Defendants- Appellees.

No. 84-2605.

United States Court of Appeals, Seventh Circuit

July 18, 1986

Argued Dec. 5, 1985.

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Ralph J. Swanson, Sebat, Swanson, Banks, Lessen & Garman, Danville, Ill., for plaintiffs-appellants.

Jane M. Whicher, Roger Baldwin Fnd. of ACLU, Inc., Chicago, Ill., for defendants-appellees.

Before WOOD and COFFEY, Circuit Judges, and GRANT, Senior District Judge. [*]

HARLINGTON WOOD, Jr., Circuit Judge.

The City of Watseka passed a solicitation ordinance which, among other provisions, limited door-to-door soliciting to the hours between 9:00 a.m. and 5:00 p.m., Monday through Saturday. The Illinois Public Action Council, whose activities the new ordinance affected, advised the city that it believed the ordinance violated the First and Fourteenth Amendments of the United States Constitution. The city filed this action seeking a declaratory judgment that the ordinance was constitutional. The district court held that the ordinance violated the First Amendment, 627 F.Supp. 27. We affirm.

I. FACTS 1

On October 15, 1979, the City of Watseka, Illinois ("Watseka") adopted the controversial ordinance regulating soliciting in the village. According to the ordinance preamble, Watseka adopted the solicitation regulation in response to numerous complaints from Watseka residents about solicitors or persons claiming to be solicitors making "nuisances of themselves by disturbing and annoying the occupants, or by

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their acts and conduct have violated the right of the occupants to the quiet and peaceful enjoyment and security of their homes, and in some cases persons have sought admittance to a residence as a solicitor for the purpose of gaining information for some illegal purpose or to commit an illegal act." 2 The ordinance defined soliciting 3 and required all solicitors to register with the city clerk, who was directed to issue Certificates of Registration to all applicants except persons who had been convicted of a felony within five years of the date of the application for the Certificate of Registration, applicants who had been convicted of a violation of the solicitation ordinance, or any person whose Certificate of Registration had previously been revoked. 4 The ordinance further provided that residents could forbid solicitation at their residences by posting a sign. 5 The ordinance made it unlawful to solicit "prior to 9:00 o-clock A.M. or after 5:00 o-clock P.M. of any weekday, or at anytime on a Sunday or on a state or national holiday." 6

On March 18, 1981, a representative of the Illinois Public Action Council ("IPAC") requested permission from Watseka to conduct a door-to-door political canvass from June 1 to July 31, 1981, between the hours of 4:00 p.m. and 9:00 p.m. IPAC is a not-for-profit Illinois corporation representing low and moderate income persons before Congress and the Illinois Legislature. IPAC canvasses to obtain new members, to educate the public, and to identify voters who will support its positions on issues of utility, energy, and tax policy and economic development. The mayor, Ernest Grove, replied in a letter dated March 20, 1981, that IPAC would be required to restrict its activities to the hours between 9:00 a.m. and 5:00 p.m. in accordance with the ordinance. IPAC informed the mayor that its normal working hours are 4:00 p.m. to 9:00 p.m., Monday through Friday, because IPAC found that more people were home during this period. Furthermore, IPAC advised Watseka that it believed that the First and Fourteenth Amendments of the United States Constitution protected IPAC's right to canvass, and that Watseka's restriction on the hours of solicitation violated IPAC's right. Watseka notified IPAC that it must comply with the city's ordinance regulating soliciting or run the risk of prosecution. On August 31, 1982, an attorney from the American Civil Liberties Union ("ACLU") representing IPAC informed Watseka of his opinion that the time limitation in the city's solicitation ordinance was unconstitutional.

On August 8, 1982, Watseka filed a complaint in Illinois state court seeking a declaratory judgment as to the constitutionality of the provision regulating hours of solicitation. IPAC and the ACLU, the named defendants, 7 moved to have the case removed to federal court. Following removal, the defendants filed an answer asserting, inter alia, that their activities did not fall within the definition of soliciting in the ordinance 8 and that the ordinance violated IPAC's First Amendment rights. The defendants also filed a Fed.R.Civ.P.

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12(b) counterclaim requesting declaratory, injunctive, and monetary relief. The defendants claimed that the ordinance was unconstitutionally vague and overbroad and an impermissible restriction on speech. Both parties filed motions for summary judgment supported by affidavits.

In its motion, IPAC again contended that the ordinance was an unconstitutional abridgment of IPAC's First Amendment right to freedom of speech. In support of this contention, IPAC submitted affidavits stating that its activities included canvassing to obtain new members and citizen support for issues, mobilizing letter writing and other means of communication with public officials, and arranging public education programs. Additionally, an IPAC solicitor stated in his affidavit that, "[i]n my four years of canvassing experience, I have found it an unvarying rule that the number of citizens contacted increases with each hour of canvassing in a normal workday, i.e., from 4 p.m. to 9 p.m."

Citing Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 632, 100 S.Ct. 826, 833, 63 L.Ed.2d 73 (1980), and Association of Community Organizations for Reform Now v. City of Frontenac, 714 F.2d 813 (8th Cir.1983), the district court found that, "IPAC's canvassing and solicitation activities are clearly protected by the First Amendment to the United States Constitution," and although "Watseka has the power to regulate the activities of canvassers and solicitors if the regulation is in furtherance of a legitimate governmental objective," the regulation of canvassing and soliciting must be undertaken "with due regard for the reality that solicitation is characteristically intertwined with informative and perhaps persuasive speech-seeking support for particular causes or for particular views on economic, political, or social issues, and for the reality that without solicitation the flow of such information and advocacy would likely cease." The district court determined that the city bore the burden of establishing the statute's constitutionality because it allegedly infringed on the exercise of First Amendment rights. Relying on Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981), the district court determined that, "the validity of regulation which infringes upon the exercise of First Amendment Freedoms will be sustained, 'only if the regulation is narrowly drawn to further a legitimate governmental objective unrelated to the restriction of communication, and if it does not unduly intrude upon the exercise of First Amendment rights.' " The district court found that there were less restrictive alternatives available to Watseka to protect its citizens from unwanted canvasses.

II. THE FIRST AMENDMENT AND DOOR-TO-DOOR SOLICITATION

The Supreme Court has recognized substantial First Amendment protection for door-to-door solicitors. See Wisconsin Action Coalition v. City of Kenosha, 767 F.2d 1248, 1251 (7th Cir.1985) (cataloguing Supreme Court cases). 9 Simultaneously, the Court has recognized the right and power of a municipality to regulate solicitation, so long as the regulation is in furtherance of a legitimate governmental objective. See, e.g., Heffron, 452 U.S. at 647-48, 101 S.Ct. at 2563-64; see also Kenosha, 767 F.2d at 1251 (listing other Supreme Court cases). One such legitimate municipal objective is protecting the privacy of its citizens, including the quiet enjoyment of their homes. Kenosha, 767 F.2d at 1251-

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52 ("peace and quiet in the home in the evening is a significant and commendable municipal objective deserving of every protection by constitutional means"); see also Carey v. Brown, 447 U.S. 455, 471, 100 S.Ct. 2286, 2295, 65 L.Ed.2d 263 (1980) (a municipality's "interest in protecting the well-being, tranquility and privacy of the home is certainly of the highest order in a free and civilized society"). Another legitimate municipal objective which will justify a properly drawn solicitation ordinance is the prevention of crime. Kenosha, 767 F.2d at 1252 n. 2. Watseka intended its ordinance to advance both of these objectives. Although we conclude that Watseka constitutionally overreached, its good intentions are apparent and understandable.

It is therefore clear that IPAC has some First Amendment protection for its solicitation and Watseka has some power to regulate solicitation in furtherance of its objectives of protecting its citizens' privacy and preventing crime. The issue we must decide is whether Watseka's ban on solicitation from 5 p.m. to 9 p.m. 10 Monday through Saturday is consistent with the First Amendment. Watseka, as the proponent of an ordinance that allegedly infringes upon IPAC's First Amendment rights, has the burden of establishing that the statute is constitutional. Kenosha, 767 F.2d at 1252 (listing Supreme Court precedent).

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