Graff v. City of Chicago

• Decision Date: 24 November 1993
• Docket Number: No. 92-2352,92-2352
• Citation: 9 F.3d 1309
• Parties: Richard GRAFF, Plaintiff-Appellant, v. CITY OF CHICAGO, an Illinois corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1309

9 F.3d 1309

62 USLW 2366

Richard GRAFF, Plaintiff-Appellant, v. CITY OF CHICAGO, an Illinois corporation, Defendant-Appellee.

No. 92-2352.

United States Court of Appeals Seventh Circuit.

Argued June 2, 1993.

Decided Nov. 24, 1993.

Matthew J. Piers, Jonathan A. Rothstein (argued), Jennifer L. Fischer, Gessler, Flynn, Fleischmann, Hughes & Socol, Chicago, IL, for Richard Graff.

Eileen T. Pahl, Office of the Corp. Counsel, Chicago, IL, Ruth M. Moscovitch, Asst Corp. Counsel, Bobbie McGee Gregg, Asst. U.S. Atty., Kelly R. Welsh, Asst. Corp. Counsel, Benna R. Solomon, Office of the Corp. Counsel, Appeals Div., Lawrence Rosenthal, Deputy County Counsel (argued), Deputy Corp. Counsel City of Chicago, Chicago, IL, for City of Chicago.

Jeffrey T. Kraus, William S. Ettelson, Altheimer & Gray, Chicago, IL, for amicus curiae Chicago Cent. Area Committee, Burnham Park Planning Bd., Cent. Michigan Avenue Business Assoc. and LaSalle Street Council, Inc.

Lawrence R. Levin, Damon E. Dunn, Levin & Funkhouser, Chicago, IL, for amicus curiae Chicago Sun-Times, Inc., Gannett Satellite Information Network, Inc. and Chicago Tribune Co.

Before POSNER, Chief Judge, and CUMMINGS, BAUER, CUDAHY, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION, KANNE, and ROVNER, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

MANION, Circuit Judge.

For nearly seventy years a newsstand has stood in front of the City of Chicago Cultural Center (formerly the Chicago Public Library). The plaintiff, Richard Graff, has operated his newsstand there since July 1984, when he purchased the stand for over fifty thousand dollars. This case concerns a City of Chicago municipal ordinance designed to force newsstand operators, such as Graff, to either acquire a permit or face eviction. Chicago threatened to remove Graff from his location. Rather than request a permit, Graff ultimately sought relief in the federal district court, with a facial challenge to the ordinance. The district court denied Graff's request to enjoin Chicago's proposed enforcement of the ordinance. 800 F.Supp. 576. For the following reasons, we affirm.

I. Background

From all indications Graff's predecessors had no ownership or property rights to the newsstand. Such newsstands seemed to have operated on public property by sheer acquiescence. At the time Graff purchased the newsstand, Chicago ostensibly required newsstand operators to acquire permits. We say ostensibly, because Graff asserted that then and now newsstands have operated on the public way without permits and only Graff has been targeted for eviction.

Under what we shall call the old ordinance, these permits were issued at the discretion of the commissioner of streets and sanitation, and the mayor could revoke a permit at any time. The old ordinance provided that such newsstands could only sell Chicago papers, and provided the mayor with no standards to guide his discretion. It also lacked hearing procedures to review the decisions to deny or revoke a permit. Chicago Mun.Code Secs. 10-28-130 to -190. Graff attempted to apply for a permit under the old ordinance without much success, although Chicago continued to issue permits for newsstands at other locations.

In November 1990, Chicago gave Graff two months' notice to remove his newsstand from the public way. This order was later rescinded. Graff, however, had had enough. On February 20, 1991, he filed a complaint against Chicago and Mayor Daley alleging that the old ordinance violated the Commerce Clause and the First and Fourteenth Amendments to the United States Constitution. ¹ He sought injunctive relief, compensatory damages and attorneys fees. Rather than defend the old ordinance, on June 28, 1991, Chicago amended it. Chicago Mun.Code Secs. 10-28-130 to -192 (1991). The defendants thereafter moved to dismiss the complaint arguing the new ordinance corrected the constitutional deficiencies that Graff had identified in his complaint. The court dismissed the case without prejudice. Rather than apply for a permit under the new ordinance, on September 11, 1991, Graff amended his complaint and attacked the new ordinance on its face. The complaint sought comprehensive relief: declaratory, preliminary and permanent injunctions, compensatory damages and attorneys fees under the First and Fourteenth Amendments.

Broadly speaking, in count one Graff alleges that Chicago's permit ordinance constitutes an unlawful prior restraint of free speech. In count two he alleges that the new ordinance violates the Equal Protection Clause because other, non-expressive uses of the public way (such as sidewalk cafes) are treated more favorably than newsstands. In count three he alleges that the old ordinance denied him equal protection of law under the Fourteenth Amendment. In 1987 Graff moved his newsstand from the east side of the Cultural Center to the west side entrance off of Randolph Street to accommodate construction of the underground Pedway Tunnel. Under count three he seeks to recoup the expenses of having had to move his newsstand and certain architectural expenses he incurred when filing his application for a permit under the old ordinance.

Again, Chicago moved to dismiss. Before the court ruled on the motion, on May 14, 1992, Chicago again notified Graff that it intended to remove his newsstand in fifteen days. Chicago had consistently objected to the size of the newsstand and had requested that it be built out of steel rather than wood. Graff filed an "Emergency Motion for Temporary Restraining Order and for Preliminary Injunction." The motion had the effect of quickly forcing the court's hand. On May 28, 1992, the court dismissed counts one and two and denied injunctive relief entirely.

The court initially found that the complaint could be read to raise an as-applied and a facial challenge to the new ordinance. But because Graff had not applied for a permit under the new ordinance, the court concluded that only a facial challenge was before it. As to count one, the court concluded that the new ordinance was content-neutral and did not raise the threat of self-censorship as enunciated in City of Lakewood v. Plain Dealer, 486 U.S. 750, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988). The court also concluded that the new ordinance contained reasonable time, place and manner restrictions necessary to accommodate the multiple uses of the public way, and contained adequate procedural safeguards. As to count two, the court ruled that Chicago could establish size limitations for newsstands, even though it did not do the same for sidewalk cafes. The court ruled that the municipal code did not support Graff's allegation that the landmark commission treated newsstands differently than other structures that visibly affected landmark property. Because Graff could not show a substantial likelihood of success on the merits, the district court denied Graff's motions for injunctive relief. Count three dealing with the old ordinance remains alive in the district court.

While Graff appealed the dismissal of counts one and two, he applied for a permit to operate two newsstands in front of the Cultural Center. Because of the location, Graff had to first seek permission from the Commission on Chicago Historical and Architectural Landmarks. That application was denied on August 13, 1992, because the newsstands would compromise the architectural integrity of the adjoining landmark building. On August 14, 1992, Chicago again notified Graff that he had fifteen days to remove his newsstand. Graff sought an injunction in this court, which we promptly dismissed. We directed him to file the matter in the district court pursuant to Fed.R.App.P. 8(a). After the district court denied him relief, on September 16, 1992, we granted Graff's motion and enjoined Chicago from destroying the newsstand pending appeal.

On February 8, 1993, after oral argument but before decision, Chicago moved to dissolve the injunction because of planned rehabilitation of the Cultural Center. Chicago had hoped to replace the handicap access ramp, and clean and remodel the exterior stonework. On February 16, 1993 a panel of this court issued its opinion reversing the district court because the new ordinance failed to provide sufficient judicial oversight, in violation of the First Amendment as espoused in FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 228, 110 S.Ct. 596, 606, 107 L.Ed.2d 603 (1990). See Graff v. City of Chicago, 986 F.2d 1055 (7th Cir.1993). Chicago's motion to dissolve the injunction was denied as moot. On April 15, 1993, this court granted Chicago's petition for rehearing en banc and vacated the panel opinion. After en banc review, we now affirm.

II. Jurisdiction

In his complaint, Graff requested a preliminary injunction. He did not press the district court for an early hearing apparently because Chicago had not yet moved the bulldozers in for the kill. On May 14, 1992, however, Chicago notified Graff that he had fifteen days to vacate. A week later Graff filed an "Emergency Motion for Temporary Restraining Order and for Preliminary Injunction." Within the week the court dismissed counts one and two, and denied all injunctive motions as moot. In his notice of appeal, Graff sought review of the district court's order "denying the plaintiff's motion for a temporary restraining order, and granting, in part, defendant's motion to dismiss plaintiff's first amended complaint."

Initially, the City argues that we lack jurisdiction to hear this appeal because one count remains alive in the district court, and therefore, final judgment has not been entered. However, 28 U.S.C. Sec. 1292(a)(1) grants us jurisdiction to hear certain interlocutory appeals, as when the district court refuses to enter an injunction. Here, the district court did just that; it refused to enter an injunction in favor of Graff by dismissing counts one and two of the complaint. Holmes v. Fisher, 854 F.2d 229, 230 (7th Cir.1988). It does...