Rothner v. City of Chicago

Decision Date01 April 1991
Docket NumberNo. 89-3614,89-3614
Citation929 F.2d 297
PartiesEric ROTHNER, doing business as Chicago Game Company, doing business as Bell Vending, Plaintiff-Appellant, v. CITY OF CHICAGO, a Municipal Corporation, Richard M. Daley, * as Mayor of the City of Chicago, and LeRoy Martin, as Superintendent of the Chicago Police Department, and their agents, officers, servants and employees, Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Kenneth Rosenburg, Lincolnwood, Ill., Glenn Seiden, Seiden & Associates, Chicago, Ill., for plaintiff-appellant.

Gregory J. Wojkowski, Corp. Counsel, Ruth M. Moscovitch, Asst. Corp. Counsel, William B. Mackin, Frederick S. Rhine, Carolyn A. Bird, and Kelly R. Welsh, Asst. Corp. Counsel, Appeals Div., Chicago, Ill., for defendants-appellees.

Before POSNER, RIPPLE and MANION, Circuit Judges.

RIPPLE, Circuit Judge.

Eric Rothner brought a civil action that challenged the constitutionality of a City of Chicago ordinance prohibiting minors from playing video games during school hours. He appeals the dismissal of his complaint for failure to state a claim. For the following reasons, we affirm the judgment of the district court. 725 F.Supp. 945.

I BACKGROUND
A. Facts

The City of Chicago (City) enacted an ordinance that regulates the use of "automatic amusement devices" (commonly known as video games). With the express purposes of encouraging "all minors to complete at least a high school education and ... discourag[ing] truancy," the ordinance prohibits minors from playing video games on days when school is in session. 1 Mem. op. at 8.

Eric Rothner, a distributor and operator of video games in Chicago, alleged "that after the ordinance went into effect, his business rapidly declined because a majority of his patrons are children under the age of seventeen." Id. at 2. Mr. Rothner filed this action in which he contended that the ordinance violated his constitutional rights.

Before the City answered the complaint, Mr. Rothner filed a motion in the Circuit Court of Cook County for a temporary restraining order to stay enforcement of the ordinance. The City unsuccessfully opposed the motion. See Rothner v. City of Chicago, 879 F.2d 1402, 1403-04 (7th Cir.1989).

The City then filed a petition to remove the case to federal court. Mr. Rothner moved to dismiss the petition and to remand the case to state court on the basis that the City, by opposing the entry of the temporary restraining order, had waived its right to remove. The district court granted Mr. Rothner's motion and remanded the case to state court. This court treated the City's appeal from the remand order as a petition for a writ of mandamus and held that, on that basis, the district court's remand order was reviewable. This court held that the district court erred by concluding that the City had waived its right to remove by opposing the motion for a temporary restraining order. Accordingly,

the court granted the writ and directed the district court to entertain the action. Id. at 1418-19.

B. The District Court

The district court first examined whether Mr. Rothner had standing to advocate his customers' first amendment rights under the doctrine of jus tertii. The court reasoned that any injury suffered by Mr. Rothner could prevent the exercise of his customers' constitutional rights. Because his customers' rights were inextricably intertwined with the activity Mr. Rothner wished to pursue, the district court determined that Mr. Rothner had standing to assert his customers' first amendment rights. Mem. op. at 3-4.

Despite Mr. Rothner's standing, the district court determined that the ordinance did not implicate constitutionally protected expression. It stated that "[n]othing in the ordinance appears to impact upon speech or incidentally implicate a right of expression." Id. at 5. The court reasoned that the ordinance regulated noncommunicative conduct; video games provided "pure entertainment with virtually no informative value or communication of substantive ideas." Id. The district court recognized that entertainment could receive first amendment protection. However, the court relied on Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501, 72 S.Ct. 777, 780, 96 L.Ed. 1098 (1952), for the proposition that entertainment must involve the communication of some idea or information before it will be protected. The district court concluded that video games lack this informative element and thus found the first amendment inapplicable. Mem. op. at 5.

The district court further held that the restriction on the use of video games did not intrude upon a first amendment freedom of association that protects an individual's freedom to associate for the advancement of ideas and beliefs. The court stated that this protection did not "extend to the gathering of potential customers at an arcade for the sole purpose of amusing themselves." 2 Id. at 6.

The district court also examined Mr. Rothner's fourteenth amendment claim. Because Mr. Rothner failed to identify any fundamental right or suspect class affected by the ordinance, the district court noted that Mr. Rothner would be unable to maintain his equal protection claim if the ordinance was related rationally to a legitimate governmental purpose. Id. at 8. The district court found a legitimate purpose in the preamble to the ordinance: to "encourage all minors to complete at least a high school education and to discourage truancy." Furthermore, the court rejected Mr. Rothner's claim that the ordinance was arbitrary and irrational because it applied only to children under seventeen. The court noted that a state law requiring children under the age of sixteen to attend school precluded a finding of arbitrariness. Moreover, the court noted that prohibiting children under the age of seventeen from playing video games during school hours was a reasonable means of discouraging truancy. Id. at 9.

Finally, the district court held that the ordinance was not void for vagueness because it was very straightforward and easily understood. The ordinance simply prohibited any minor under seventeen years of age from playing video games during school hours. Id. at 10.

II ANALYSIS
A. Threshold Considerations
1. Appellate jurisdiction

The City contends that this court is without jurisdiction because the district court dismissed the complaint, not the action in its entirety. We previously have noted that the simple dismissal of a complaint, standing alone, does not terminate the litigation. Benjamin v. United States, 833 F.2d 669, 671 (7th Cir.1987); Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1111 (7th Cir.1984), cert. denied, 470 U.S. 1054, 105 S.Ct. 1758, 84 L.Ed.2d 821 (1985). A dismissal of the entire action, however, "ends the litigation and forces the plaintiff to choose between appealing the judgment or moving to reopen the judgment and amend the complaint pursuant to Fed.R.Civ.P. 59 or Rule 60." Benjamin, 833 F.2d at 671 (citing Car Carriers, 745 F.2d at 1111). We have recognized that, under "special circumstances," dismissal of the complaint could constitute finality. Principal Mut. Life Ins. v. Cincinnati TV 64 Ltd., 845 F.2d 674, 676 (7th Cir.1988); Akins v. Board of Governors, 840 F.2d 1371, 1375 n. 2 (7th Cir.1988). This exception applies when "it is 'clear' that the court below found that 'the action could not be saved by any amendment of the complaint which the plaintiff could reasonably be expected to make.' " California v. Harvier, 700 F.2d 1217, 1218 (9th Cir.) (quoting Marshall v. Sawyer, 301 F.2d 639, 643 (9th Cir.1962)), cert. denied, 464 U.S. 820, 104 S.Ct. 82, 78 L.Ed.2d 92 (1983).

At first glance, this case would seem to be governed by our decision in Benjamin. In Benjamin, we considered whether a district court order stating that "Plaintiff take[s] nothing by his Complaint and said Complaint is DISMISSED" constituted a dismissal of the action when the district court used the words "complaint" and "action" interchangeably in its accompanying entry. Benjamin, 833 F.2d at 671. We refused to use the ambiguity in the entry to impeach the explicit language of the judgment. Central to our decision in Benjamin was the fact that it was "not at all 'clear' that the district court had concluded that 'the action could not be saved by an amendment of the complaint....' " Id. at 672 (quoting Marshall v. Sawyer, 301 F.2d 639, 643 (9th Cir.1962)).

Despite its superficial similarity to Benjamin, 3 we believe several factors make clear that the policy concerns animating the final judgment rule require a different result in this case. When the court's dismissal is evaluated as a whole, it is clear that the district court intended to dispose of the entire case. By disposing definitively of the constitutional claims of the plaintiff, the district court evidenced an unambiguous intent to render a final judgment. Moreover, the record reflects that, in entering judgment, the court checked the box on the minute order indicating that judgment had in fact been rendered. " 'If it appears that the district court intended the dismissal to dispose of the action, it may be considered final and appealable.' " Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1514 (9th Cir.1987) (quoting Hoohuli v. Ariyoshi, 741 F.2d 1169, 1171 n. 1 (9th Cir.1984)). Under these circumstances, we must conclude that the district court dismissed the action in its entirety. Therefore, we have jurisdiction to review the district court's determination.

2. Standing

Mr. Rothner alleges that the City ordinance deprives children under seventeen of their first amendment rights. Thus, Mr. Rothner seeks to enforce the rights of third parties. Ordinarily, courts do not permit one party to assert the constitutional rights of another. "Federal courts must hesitate before resolving a controversy, even one within their constitutional power to resolve, on the basis of the rights of third...

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