Harp Advertising Illinois, Inc. v. Village of Chicago Ridge, Ill.

• Decision Date: 19 November 1993
• Docket Number: No. 93-1103,93-1103
• Citation: 9 F.3d 1290
• Parties: HARP ADVERTISING ILLINOIS, INC., Plaintiff-Appellant, v. VILLAGE OF CHICAGO RIDGE, ILLINOIS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1290

9 F.3d 1290

HARP ADVERTISING ILLINOIS, INC., Plaintiff-Appellant, v. VILLAGE OF CHICAGO RIDGE, ILLINOIS, Defendant-Appellee.

No. 93-1103.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 3, 1993.

Decided Nov. 19, 1993.

Barbara J. Gosselar (argued), Kenneth T. Kubiesa, Kubiesa & Power, Westmont, IL, for plaintiff-appellant.

Edward M. Kay, James T. Ferrini, Sonia V. Odarczenko, Susan Condon (argued), Imelda Terrazino, Clausen, Miller, Gorman, Caffrey & Witous, Chicago, IL, Robert B. Baal, Bryan J. O'Connor, Baal & O'Connor, Chicago, IL, for defendant-appellee.

Before FLAUM and EASTERBROOK, Circuit Judges, and WOOD, Jr., Senior Circuit Judge.

EASTERBROOK, Circuit Judge.

Harp Advertising wants to erect a billboard in Chicago Ridge, Illinois. Portions of the village's zoning code got in the way; so did provisions of its sign code. Harp filed this suit under 42 U.S.C. Sec. 1983, contending that the ordinances violate the first amendment, applied to states (and villages) by the fourteenth. Magistrate Judge Lefkow recommended that the district court declare the sign code unconstitutional but sustain the zoning code; before the district court could act, Chicago Ridge repealed the challenged provisions of the sign code. The district judge then declared the challenge to the sign code moot and entered judgment for the village, 809 F.Supp. 1315, on Harp Advertising's challenge to the zoning code--a challenge depending on the theory that a ban on off-premises signs discriminates against non-commercial speech. See Messer v. Douglasville, 975 F.2d 1505 (11th Cir.1992) (holding that an ordinance restricting off-premises signs does not implicitly discriminate against particular subjects or viewpoints); Chicago Observer, Inc. v. Chicago, 929 F.2d 325, 328 (7th Cir.1991) (on-premises rule permissible because it "makes no exception for favored causes").

Repeal of an ordinance does not necessarily terminate the case or controversy. See Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 1074, 71 L.Ed.2d 152 (1982), observing that "repeal of the objectionable language would not preclude [a city] from reenacting precisely the same provision if the District Court's judgment were vacated." See also Northeastern Florida Chapter of the Associated General Contractors of America v. Jacksonville, --- U.S. ----, ----, 113 S.Ct. 2297, 2301, 124 L.Ed.2d 586 (1993). But Harp Advertising confronts a deeper problem. It lacks standing to challenge either the sign code or the zoning code, because it could not put up its sign even if it achieved total victory in this litigation. See Renne v. Geary, --- U.S. ----, ---- - ----, 111 S.Ct. 2331, 2337-38, 115 L.Ed.2d 288 (1991). Harp's proposed billboard would measure 20 by 60 feet. Yet village ordinance Sec. 4-5-10-3(A) provides that no sign may have a face exceeding 200 square feet. Harp does not contest the validity of this ordinance; its proposed billboard, six times as large as Chicago Ridge allows, therefore will never appear. This litigation is irrelevant. There might be a point to the case if Harp wanted to post a smaller sign in the event it could clear away the regulatory obstacles other than Sec. 4-5-10-3(A). But Harp did not make such a representation in the district court, and its lawyer refrained from doing so in this court despite an invitation during oral argument.

Harp believes that because it is waging a "facial" attack on the ordinances it need not show that a victory will produce a concrete benefit. It misapprehends the relation between standing and "facial" challenges. Challenges to statutes as written, without inquiring into their application, are appropriate when details of implementation are inconsequential (usually because nothing could be done in the course of application to save the law) or when the laws are so overbroad that the risk of improper application leads persons to withdraw from the borderland. Fear of penalty, leading to a reduction in speech, supports the doctrine that a person whose speech lawfully could be regulated may challenge a statute achieving regulation in an improper way, or to an excessive extent. Forsyth County v. Nationalist Movement, --- U.S. ----, ---- - ----, 112 S.Ct. 2395, 2400-01, 120 L.Ed.2d 101 (1992). This does not imply, however, that the requirement of standing to sue has been elided. See Henry P. Monaghan, Overbreadth, 1981 Sup.Ct.Rev. 1. When the challenged statute is the only thing standing in the way of additional speech, the winner of the contest has a valuable prize, even if the government may enact a different statute that snatches away the victory. Harp has no similar prospect of gain. An injunction against the portions of the sign and zoning codes that it has challenged would not let it erect the proposed sign; the village could block the sign simply by enforcing another, valid, ordinance already on the books. Harp has no...