Daugherty v. Daley

• Decision Date: 05 February 1974
• Docket Number: No. 73 C 1400.,73 C 1400.
• Citation: 370 F. Supp. 338
• Parties: Mary Jane DAUGHERTY et al., Plaintiffs, v. Richard J. DALEY et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

370 F. Supp. 338

Mary Jane DAUGHERTY et al., Plaintiffs, v. Richard J. DALEY et al., Defendants.

No. 73 C 1400.

United States District Court, N. D. Illinois, E. D.

February 5, 1974.

Julius Lucius Echeles, Chicago, Ill., for plaintiffs.

Robert R. Retke and William R. Quinlan, Asst. Corp. Counsels, City of Chicago, Chicago, Ill., for defendants.

Before KILEY, Circuit Judge, and PARSONS and McGARR, District Judges.

MEMORANDUM OPINION AND ORDER

PARSONS, District Judge.

Plaintiffs bring this action pursuant to Rule 23(a), Federal Rules of Civil Procedure, Title 28 U.S.C., on their own behalf and on behalf of all others similarly situated. They charge that Ill. Rev.Stat., Ch. 38, Secs. 26.1-2(a) and 26.1-3(c) are unconstitutional and seek a declaratory judgment, temporary and permanent injunctions, and other relief.

The statutory provisions in question may be described generally as prohibiting the solicitation by females in taverns of the purchase of alcoholic or nonalcoholic beverages, and prohibiting anyone from serving female employees beverages purchased by male patrons of taverns.

Plaintiffs sue as representatives of several subclasses. The first are hostesses and entertainers employed on premises licensed to sell alcoholic liquor by the drink, who have been arrested and prosecuted for violation of the state statutes and later discharged. The second are waitresses and bartenders who serve or sell alcoholic liquor by the drink on licensed premises and who have been arrested and prosecuted for violation of the state law and later discharged. And the third are licensees of premises whose violations of the state statutes could result in revocations of licenses by the City.

Defendants are the Mayor of Chicago who is the Local Liquor Control Commissioner of the City; the Superintendent of Police of Chicago whose officers investigate and make arrests for violations of the statutes concerned; the Corporation Counsel for the City of Chicago; the State's Attorney of Cook County, who presents violations of the statutes and proceedings for revocation of licenses; and certain police officers who have made arrests under the statutes.

The defendants moved for dismissal for want of jurisdiction and, alternatively, applied for the convening of a three-judge court (28 U.S.C. 2281). Notice was given to the Governor and Attorney General of Illinois, required by 28 U.S.C. 2284. Each indicated by letter that, for the time being, he will not intervene nor participate in the matter.

A temporary restraining order was entered by a single judge of this district. It restrained the Chicago Liquor Commission from enforcing §§ 26.1-2 and 26.1-3 through revocation proceedings against any of plaintiffs' establishments. The order was expanded later to restrain the defendants Superintendent of Police and policemen from entering plaintiffs' establishments for purposes of harassment, but allowed them to enter for the purpose of arrest upon probable cause to believe that violations of the questioned statutes were occurring.

This three-judge court was convened to consider the question of the constitutionality of the statutes. Finding that at least the tavern owners and licensees have standing to sue and that jurisdiction exists, we have had the matter of constitutionality of the statutes on their face briefed and argued by the parties.

The pertinent provisions of Sections 26.1-2 and 26.1-3 are as follows:

"26.1-2 Soliciting

"No female, whether employee, entertainer or otherwise shall:

"(a) Solicit, induce or request a patron to purchase any alcoholic or nonalcoholic beverage for herself or any other person * * *." * * *

"26.1-3 Other Prohibited Activities

"No person may * * *

"(c) Knowingly serve to a female employee any alcoholic or nonalcoholic beverage which was purchased by any male person not related to such employee by blood or marriage."

The plaintiffs complain that these statutory provisions discriminate against females and against persons who serve drinks to female employees solely on the basis of sex. Such discrimination, they argue, constitutes an invidious limitation of and infringement upon the equality of the sexes without any rational or legitimate basis. They also complain of statutory overbreadth and vagueness.

The defendants urging the constitutionality of the statutes, seek to rely on the decisions of the Supreme Court in Goesaert v. Clary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163 (1948), and California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972) which, they say, upheld similar statutory prohibitions against a variety of constitutional challenges.

We conclude that the classifications contained in Sections 26.1-2(a) and 26.1-3(c) and their overbreadth and vagueness violate the Fourteenth Amendment to the Constitution of the United States.

In California v. LaRue, supra, the Supreme Court upheld a California regulation which prohibited the performance of certain sexual acts in places where liquor by the drink was sold. In arriving at its conclusion the Court recognized that the broad sweep of the Twenty-first Amendment conferred upon states something more than the usual state authority over public health, welfare, and morals. Id. at 114, 93 S.Ct. 390. But it ". . . did not go so far as to hold or say that the Twenty-first Amendment supersedes all other provisions of the United States Constitution in the area of liquor regulations." Id. at 115, 93 S. Ct. at 395. The standard to be applied is rationality: the state regulation must have some rational basis. Id. at 116, 93 S.Ct. 390. More recently, Mr. Justice Brennan, writing for a plurality in Frontiero v. Richardson, 411 U.S. 677, 682, 93 S.Ct. 1764, 1768, 36 L.Ed.2d 583 (1973), stated that classifications based upon sex "are inherently suspect and must therefore be subjected to close judicial scrutiny."

The Illinois Legislature has broad regulatory authority over the disposition and sale of liquor within Illinois. We do not have here the question of the authority of the State to impose reasonable controls upon employee solicitations or the inducing of patrons to buy drinks, or even to ban solicitation entirely. But to prohibit solicitation by female persons and not male persons sets up a classification based on sex which is subject to "close scrutiny" under the Equal Protection Clause of the Fourteenth Amendment. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971).

In Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163 (1948), the Court upheld¹ the validity of a Michigan barmaid statute which prohibited a woman from tending bar who was neither the wife nor daughter of the male owner. Licenses were issued only to men, and a rational inference was drawn that the protection and "oversight assured through ownership of a bar by a barmaid's husband or father minimizes hazards that may confront a barmaid without such protecting oversight." Id. at 466, 69 S.Ct. at 200. The issue in that case was decided by examining the specific rational basis for the legislative goals which were presented to...