Curtis v. Thompson

• Decision Date: 12 April 1988
• Docket Number: No. 86-2921,86-2921
• Citation: 840 F.2d 1291
• Parties: Brenda CURTIS, Plaintiff-Appellant, v. James R. THOMPSON, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1291

840 F.2d 1291

56 USLW 2477

Brenda CURTIS, Plaintiff-Appellant, v. James R. THOMPSON, et al., Defendants-Appellees.

No. 86-2921.

United States Court of Appeals, Seventh Circuit.

Argued May 21, 1987.

Decided Feb. 5, 1988.

Rehearing Denied April 12, 1988.

Philip G. Stahl, Isham Lincoln & Beale, Chicago, Ill., for plaintiff-appellant.

Karen Dimond, Asst. State's Atty., Bret A. Rappaport, Asst. Atty. Gen., Chicago, Ill., for defendants-appellees.

Before COFFEY and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

COFFEY, Circuit Judge.

Plaintiff Brenda Curtis appeals the district court's denial of her motion for a preliminary injunction. Her complaint seeks to enjoin the enforcement of an Illinois statute making it a crime to solicit the sale of residential real estate once the owner has given notice that he or she does not desire to sell the property, Ill.Rev.Stat. Ch. 38 Sec. 70-51(d), as violative of the First Amendment. We affirm.

I.

The Illinois General Assembly enacted a statute in 1973 prohibiting any individual or corporation from contacting residential property owners for the purpose of persuading them to sell or list their homes after the property owner has given notice to the solicitor that he or she is not interested in selling the property. Ill.Rev.Stat. Ch. 38 Sec. 70-51(d). ¹ Subsection (d)(1) of the statute enables the property owner to provide the required notice either personally or through a third party. Individual property owners may also give notice to particular real estate brokers or, as in this case, in the form of a list containing the names of several property owners. Id.

The stated purpose of the statute is to prevent so-called "blockbusting" or "panic peddling," see People v. C. Betts Realtors, Inc., 66 Ill.2d 144, 5 Ill.Dec. 258, 260-61, 361 N.E.2d 581, 583-84 (1977) (upholding the constitutionality of Sec. 70-51(d)); that is, the unlawful practice of "solicit[ing] sales of property from white persons on the ground that loss of value will ensue because Negroes have moved ... into a neighborhood...." Chicago Real Estate Board v. City of Chicago, 36 Ill.2d 530, 224 N.E.2d 793, 797 (1967). ² The Act's title illustrates this purpose: "An Act to Prohibit the Solicitation or Inducement of Sale or Purchase of Real Estate on the Basis of Race, Color, Religion, National Origin, Ancestry, Creed, Handicap, or Sex." Ill.Rev.Stat. Ch. 38 Sec. 70-51. Violations of the statute carry a penalty including either a fine and/or imprisonment, or a combination of both. ³

Plaintiff-appellant Brenda Curtis, a registered real estate agent, filed this civil rights action pursuant to 42 U.S.C. Sec. 1983, challenging the constitutionality of the Act. Other plaintiffs in this lawsuit (not parties to this appeal) are Alvin T. Pearson, Harold T. Baker, and Mardie Brown, owners and operators of Century 21 Pearson, Inc. Realtors. The defendants are James R. Thompson, the governor of the state of Illinois, Neil F. Hartigan, the Illinois Attorney General, Richard M. Daley, State's Attorney of Cook County, and the Beverly Area Planning Association (BAPA), an Illinois not-for-profit corporation located in Beverly, Illinois.

This lawsuit arose out of BAPA's compilation of a list of some 3,500 Beverly, Illinois, residents who requested that this community organization (BAPA) notify all real estate agents doing business in the township that they did not wish their homes listed for sale with any real estate agencies. These residents, through this affirmative, formal notification to BAPA, were anticipating that the listing of their names on this exempt list would free them from phone calls and/or solicitation by real estate agents. On March 12, 1984, a copy of the BAPA real estate exclusion list was delivered to the plaintiff Alvin Pearson at his Century 21 real estate agency. The plaintiff-appellant Brenda Curtis, an independent real estate agent, did not receive a copy of this list.

According to the complaint on file, BAPA received complaints from a number of Beverly residents who had been solicited by Century 21 after having signified that they did not wish to be called and solicited about listing their residential property for sale. Thereafter, BAPA suggested to the state's attorney's office that it investigate these complaints and any possible statutory violations by Century 21 employees. An investigation followed and revealed that certain "independent contractors working for Century 21" made telephone calls to several Beverly residents whose names appeared on the BAPA list, inquiring if they were interested in listing their homes for sale. ⁴ Subsequently, plaintiffs Pearson, Baker, Brown and the Century 21 agency were charged with criminal violations of the statute.

In her complaint, Curtis alleges that she is a registered real estate broker and would have provided truthful and accurate information to Beverly residents regarding the listing of homes for sale in the area were it not for the existence of the statute and its subsequent enforcement against the other plaintiffs. She submits that because of the state's enforcement of the statute, she has been deprived of the right to offer her services to Beverly residents, including those whose names are not listed on the BAPA registry. She maintains that this statute violates her right to free speech under the First Amendment and asks that the state and its agents be enjoined from enforcing it.

On the same day the plaintiffs filed their complaint, March 31, 1986, all the plaintiffs moved for a temporary restraining order and a preliminary injunction and a hearing seeking to enjoin both the pending criminal proceedings against Pearson, Baker and Brown, and the statute's enforcement generally. On April 3, 1986, the district court, after initially determining that an evidentiary hearing was unnecessary, held a hearing restricted solely to issues of law. Thus, the defendants did not submit affidavits or other evidence to controvert the allegations contained in plaintiffs' verified complaint. After the hearing, the Court denied plaintiffs' motion for a temporary restraining order but took under advisement their motion for the issuance of a preliminary injunction.

On April 25, 1986, the plaintiffs filed a joint memorandum in support of their motion for a preliminary injunction. The defendants moved to dismiss. No further hearings were held.

Some time later, on October 24, 1986, the district court granted the defendants' motions to dismiss the complaint as to all plaintiffs except Curtis on the ground that the plaintiffs had failed to allege their state court prosecutions were brought in bad faith. Absent such allegations, the court, relying on the abstention doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), declined to enjoin those proceedings. The Court stated:

"Except as to plaintiff Brenda Curtis, each of the defendants' motions to dismiss is granted with leave to replead. Younger v. Harris, 401 U.S. 37, [91 S.Ct. 746, 27 L.Ed.2d 669] (1971), and Samuels v. Mackell, 401 U.S. 66 [91 S.Ct. 764, 27 L.Ed.2d 688] (1971), prevent this court from interfering with a pending state prosecution in the absence of a showing that the prosecution was brought in bad faith. Because the plaintiffs have failed to make a sufficient showing, they cannot avail themselves of this recognized exception to the Younger doctrine."

Additionally, the court denied the plaintiffs' motion for a preliminary injunction solely on the ground that they had failed to demonstrate a likelihood of success on the merits. In so ruling, the court addressed only one of the five factors necessary to support preliminary injunctive relief: the likelihood of plaintiff's success on the merits. Curtis individually is the only plaintiff who appeals that portion of the district court's order denying the plaintiff's requested injunctive relief.

II.

As an initial matter, we must determine whether the district court properly denied Curtis' motion for a preliminary injunction without explicitly reciting in its order that it had considered the other four elements Curtis must prove when attempting to establish her right to an injunction. See the test set forth in Roland Machinery Company v. Dresser Industries, 749 F.2d 380, 382-88 (7th Cir.1984), and expanded upon in later cases. E.g., Lawson Products Inc. v. Avnet Inc., 782 F.2d 1429, 1432 (7th Cir.1986); Brunswick Corp. v. Jones 784 F.2d 271 (7th Cir.1986). Curtis, in establishing her entitlement to a preliminary injunction, bears the burden of demonstrating:

"(1) that [she] has no adequate remedy at law;

(2) that [she] will suffer irreparable harm if the preliminary injunction is not issued;

(3) that the irreparable harm [she] will suffer if the preliminary injunction is not granted is greater than the irreparable harm the defendant will suffer if the injunction is granted;

(4) that [she] has a reasonable likelihood of prevailing on the merits; and

(5) that the injunction will not harm the public interest."

Brunswick Corporation v. Jones, 784 F.2d 271, 273-74 (7th Cir.1986).

The district court's weighing of these factors is a factbound analysis and involves the exercise of discretion. We will reverse the court's decision only where we are convinced that there has been abuse of discretion on the part of the court. See Lawson Products, 782 F.2d at 1436-39. Whether the plaintiff can demonstrate a reasonable likelihood of prevailing on the merits often requires a district judge to decide questions of law, as was the case here: the court found that Curtis had no chance of prevailing on the merits since her complaint failed to state a claim under the First Amendment. Therefore, this is not a situation where the probability of plaintiff's success depends on facts that are likely to emerge at trial; the issue of the sufficiency of plaintiff's complaint is solely a question of law. As with all questions of law, w...