Graff v. City of Chicago

• Decision Date: 15 April 1993
• Docket Number: No. 92-2352,92-2352
• Citation: 986 F.2d 1055
• Parties: , 21 Media L. Rep. 1097 Richard GRAFF, Plaintiff-Appellant, v. CITY OF CHICAGO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1055

986 F.2d 1055

61 USLW 2524, 21 Media L. Rep. 1097

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

No. 92-2352.

United States Court of Appeals Seventh Circuit.

Argued Oct. 1, 1992.

Decided Feb. 16, 1993.

Order Granting Rehearing En Banc

and Vacating Opinion April 15, 1993.

Matthew J. Piers, Jonathan A. Rothstein (argued), Gessler, Flynn, Fleischmann, Hughes & Socol, Chicago, IL, for plaintiff-appellant.

Eileen T. Pahl, Ruth M. Moscovitch, ACC, Bobbie McGee Gregg, Asst. U.S. Atty. (argued), Kelly R. Welsh, Asst. Corp. Counsel, Benna R. Solomon, Office of the Corp. Counsel, Appeals Div., Chicago, IL, for defendant-appellee.

Before CUMMINGS and MANION, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

CUMMINGS, Circuit Judge.

Richard Graff is in the business of selling newspapers and magazines adjacent to the Randolph Street entrance to the City of Chicago Cultural Center, formerly the flagship building of the Chicago Public Library. It is a prized location; a newsstand has operated on approximately the same site for seventy years. After Mr. Graff bought the stand in 1984 for $53,000, he applied several times for a permit. The city denied his application in each instance because, it said, the municipal policy toward newsstands was under review and the city was issuing no new permits, even to those with existing newsstands. Apparently Chicago allowed permitless stands to operate during this period. In 1987 Mr. Graff moved his stand from the east to the west side of the steps of the Randolph Street entrance to make way for construction crews. He did so at the behest of the city, though the parties dispute whether Mr. Graff was forced to move or he agreed to do so. Subsequently, the city sent Mr. Graff a series of notices ordering him to remove the structure entirely. Each of these notices was rescinded after consultations between Mr. Graff's lawyers and municipal officials. When Mr. Graff applied once again for a permit, he was told that the city was still not issuing them, though Mr. Graff claimed to have evidence to the contrary. Concerned that he would be driven out of business, Mr. Graff filed this suit in district court alleging that Chicago's ordinance regulating newsstand operators violated the Commerce Clause and the First and Fourteenth Amendments to the Constitution. The plaintiff also sought injunctive relief to stop the city from enforcing its ordinance against him.

On June 28, 1991, some four months after Mr. Graff lodged his complaint, the City Council approved a new ordinance regulating newsstands. CHICAGO, ILL.MUN.CODE §§ 10-28-130-10-28-192 (1991). ¹ The new ordinance is more specific about what factors city officials should consider in issuing permits; it also eliminates a provision in the old law that favored newsstands selling publications printed in Chicago. Mr. Graff then amended his action to attack the constitutionality of the new city ordinance under the First and Fourteenth Amendments, and he again requested injunctive relief. Sometime later Mr. Graff also filed a new permit application, which the Commission on Chicago Landmarks denied. In the court below, the city defended its ordinance as a content-neutral time, place and manner regulation. The district court, finding that Mr. Graff had mounted only a facial challenge to the newsstand law, upheld the constitutionality of the ordinance, 800 F.Supp. 576. Thus the court dismissed two counts of the complaint attacking the new ordinance, denied injunctive relief as moot, and removed Mayor Richard M. Daley as a defendant. ² The district court did preserve one count of Mr. Graff's complaint based on the city's allegedly arbitrary and irrational treatment of his various applications for a permit under the old ordinance. The city does not contest the district court's decision to retain this one count.

As to the other two counts which the district court dismissed, we reverse. Because it gives too much discretion to an unelected decisionmaker, the Chicago ordinance violates the First Amendment of the United States Constitution.

I.

As a preliminary matter, defendant argues that this Court lacks jurisdiction to hear plaintiff's appeal because the judgment below is not final. Plaintiff asserts that we have jurisdiction under 28 U.S.C. §§ 1291 and 1292(a)(1) to hear appeals from an interlocutory order denying injunctive relief. The district court dismissed with prejudice counts one and two of Mr. Graff's complaint. As a result, Judge Lindberg concluded that plaintiff could not prevail on the merits of his claim and so denied his motion for what the judge called a temporary restraining order. Defendant is correct that denial of a temporary restraining order is not appealable. Geneva Assurance Syndicate Inc. v. Medical Emergency Services Ass'n, 964 F.2d 599, 600 (7th Cir.1992) (per curiam). However, the character of the injunctive relief sought, not what the judge happens to call it, will determine whether it may be appealed. Sampson v. Murray, 415 U.S. 61, 85-88, 94 S.Ct. 937, 950-952, 39 L.Ed.2d 166 (1974). Temporary restraining orders are for brief periods (ten days plus one ten-day extension for good cause under Federal Rule of Civil Procedure 65(b)), ex parte, and informal. Geneva Assurance Syndicate, 964 F.2d at 600. In this case, Mr. Graff stated in his amended complaint that he sought a "preliminary and permanent injunction" against the city, not a temporary restraining order. The party's characterization of the relief sought is no more controlling than the judge's. In this case, however, a ten- or twenty-day injunction would have done little for Mr. Graff. Also, his prayer for relief was lodged in a formal complaint involving the opposing party. In no sense was Mr. Graff asking for a brief, ex parte, informal temporary restraining order; he was asking for a preliminary injunction, the denial of which is appealable to this Court.

The city also quotes Carson v. American Brands, Inc., 450 U.S. 79, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981), for the proposition that a party may not appeal an interlocutory order dismissing some, but not all, counts of a complaint while denying a motion for a preliminary injunction as moot. The defendant tries to fit this case under the rubric of interlocutory orders that have the practical effect of denying injunctive relief, as opposed to interlocutory orders that deny injunctive relief directly. According to defendant, the former may not be appealed unless the party can show (1) serious, perhaps irreparable consequences and (2) the order can be "effectually challenged" only by immediate appeal. Carson, 450 U.S. at 84, 101 S.Ct. at 996. Defendant's argument falters because this is not a practical effect case; the judge explicitly denied plaintiff's prayer for injunctive relief. Moreover, the cases cited by Justice Brennan in Carson to illustrate the irreparable injury requirement concerned plaintiffs who had not filed motions seeking a preliminary injunction. 450 U.S. at 84-86, 101 S.Ct. at 996-997. As we concluded above, Mr. Graff did petition the district court for a preliminary injunction.

Our decision in Holmes v. Fisher, 854 F.2d 229, 231 (7th Cir.1988), explicitly rejected the approach taken by some courts of requiring irreparable injury where there is no question that the plaintiff was denied injunctive relief: "Section 1292(a)(1) is decently plain: all interlocutory orders denying injunctions are appealable." Id. Yet even if this were a practical effect case, Mr. Graff would have little difficulty meeting the irreparable injury requirement. By denying his claim for injunctive relief and by dismissing his constitutional challenge to the new ordinance, the lower court left the city free to force Mr. Graff out of the news-selling business, and the city did precisely that a short two months after the district court rendered its judgment. It is hard to imagine a more compelling case of irreparable injury.

II.

This suit could involve as many as three separate claims: an as-applied challenge under the old ordinance, an as-applied challenge under the new ordinance, and a constitutional challenge to the new ordinance on its face. The facts surrounding Mr. Graff's treatment by defendant under the old ordinance are ultimately unnecessary to this discussion because the district court did not resolve those issues. Therefore, the as-applied attack on the previous ordinance is not properly before us. Similarly, we need not consider Mr. Graff's as-applied challenge to the new ordinance--assuming he raised such a claim--because the ordinance itself violates the Constitution. ³

Mr. Graff is well placed to bring a facial challenge to the Chicago ordinance. In the free speech context, a plaintiff is entitled to challenge the constitutionality of a statute for delegating overly broad licensing discretion to an administrator, even if his conduct could be prescribed by a properly drawn statute. Freedman v. Maryland, 380 U.S. 51, 56, 85 S.Ct. 734, 737-738, 13 L.Ed.2d 649 (1965). One has standing to make such a challenge to the face of a law even if the person has not applied for a permit or license. Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 741-742, 84 L.Ed. 1093 (1940). Courts are willing to overlook the usual requirements of the case or controversy doctrine in the First Amendment arena because of the fear that people will censor themselves, and because it is difficult to detect, review and correct content-based discrimination without standards by which to measure the licensor's action. City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 759, 108 S.Ct. 2138, 2145, 100 L.Ed.2d 771 (1988). "Self-censorship is immune to an 'as applied' challenge, for it derives from the individual's own actions, not an abuse of government power." Id. at 757, 108 S.Ct. at 2144. Just as in Lakewood, the licensing scheme in the instant case has two features that permit a...