National Paint & Coatings Ass'n v. City of Chicago, 93-3969

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation45 F.3d 1124
Docket NumberNo. 93-3969,93-3969
PartiesNATIONAL PAINT & COATINGS ASSOCIATION, et al., Plaintiffs-Appellees, v. CITY OF CHICAGO, Defendant-Appellant.
Decision Date24 January 1995

Steven P. Handler (argued), Bruce H. Weitzman, Paul M. Weiss, McDermott, Will & Emery, Chicago, IL, for plaintiffs-appellees National Paint & Coatings Ass'n et al.

Cynthia Anne Cohan, Thomas G. Dent, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, for plaintiff-appellee Sherwin-Williams Co.

Lawrence Rosenthal, Deputy County Counsel, Benna R. Solomon, Stuart D. Fullerton (argued), Susan S. Sher, Office of Corp. Counsel, Appeals Div., Chicago, IL, for defendant-appellant.

Before EASTERBROOK, MANION, and ROVNER, Circuit Judges.

EASTERBROOK, Circuit Judge.

Graffiti cover more than five million square feet of walls, signs, windows, and other public surfaces in Chicago. Full-time crews patrol the streets removing paint, but they are losing ground. Vandalism and trespass are crimes, but prosecution has not sufficed. In May 1992 Chicago decided to do something more: to lump spray paint and jumbo markers, the principal tools of the graffiti "artist," with burglars' tools and other criminal implements as contraband. An ordinance forbids the sale of spray paint and jumbo indelible markers (collectively spray paint) within the city limits. Chicago Municipal Code Sec. 4-132-150 (1992). The fine for each violation: $100.


Plaintiffs in this suit, a consortium of makers, wholesalers, and retailers of paint and markers, contend that this ordinance and a related law enacted at the same time exceed Chicago's home-rule powers under Illinois law and violate the Constitution of the United States to boot. Over the objection of the City, the district court held a trial and concluded, after hearing evidence for six days, that a ban will not work. 835 F.Supp. 421 (N.D.Ill.1993). The court found that the vandals live, eat, and breathe graffiti, that they are so committed to producing narcissistic displays that they are undeterrable--not by fines, anyway. Although the law will dry up the supply of spray paint at retail outlets in Chicago, the vandals can obtain their needs in the suburbs and continue their rampage. Another ordinance forbids the possession of spray paint "on the property of another" or in any public building or facility. Chicago Municipal Code Sec. 8-4-130(a). Although the plaintiffs no longer challenge this law (the district court held that they lack standing to do so), the judge believed that even the combination of a ban on sales and a severe restriction on possession would fail. Because the ordinances will not work, they are, the court believed, unconstitutional--for it is irrational to deprive the law-abiding 99% of spray paint users of a substance for which they have productive uses when the deprivation does not accomplish anything. The district court concluded that the ban on sales therefore violates the dormant commerce clause and principles of substantive due process, and that it also exceeds Chicago's home-rule powers. It enjoined enforcement of the ordinance. The injunction has remained in effect pending appeal.

The district court treated the extent of the City's powers as an afterthought, mentioning the subject (and holding the ordinance invalid on this basis) only after considering and resolving both of plaintiffs' constitutional claims. 835 F.Supp. at 434-35. Yet if a sufficient non-constitutional ground of decision is available, a court must begin and end there. New York City Transit Authority v. Beazer, 440 U.S. 568, 582-83, 99 S.Ct. 1355, 1364, 59 L.Ed.2d 587 (1979). Constitutional adjudication is a last resort, and courts should do what they can to decide on other grounds. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501, 105 S.Ct. 2794, 2800, 86 L.Ed.2d 394 (1985); Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed. 101 (1944). As it turns out, however, the City's home-rule powers are quite sufficient to enact this ordinance. A home-rule unit in Illinois may "regulate for the protection of the public health, safety, morals and welfare". Ill. Const. art. VII Sec. 6(a). This "provision was written with the intention that home-rule units be given the broadest powers possible." Scadron v. Des Plaines, 153 Ill.2d 164, 174, 180 Ill.Dec. 77, 81, 606 N.E.2d 1154, 1158 (1992). See also, e.g., Bolingbrook v. Citizens Utilities Co., 158 Ill.2d 133, 198 Ill.Dec. 389, 632 N.E.2d 1000 (1994). Some state cases contain stray language implying that courts may assess the wisdom of legislation, e.g., Crocker v. Finley, 99 Ill.2d 444, 457, 77 Ill.Dec. 97, 103, 459 N.E.2d 1346, 1352 (1984), but in the main the Supreme Court of Illinois has permitted cities the same leeway the Supreme Court of the United States affords to the states. E.g, Triple A Services, Inc. v. Rice, 131 Ill.2d 217, 227-34, 137 Ill.Dec. 53, 59-60, 545 N.E.2d 706, 711-13 (1989); Cutinello v. Whitley, 161 Ill.2d 409, 421-22, 204 Ill.Dec. 136, 140-41, 641 N.E.2d 360, 364-65 (1994). The district court's conclusion was parasitic on its constitutional holding: it reasoned that cities lack authority to enact irrational laws. Whether that is so as a matter of Illinois law does not matter; it is plain that the home-rule question is not an independent state ground of decision, and we therefore turn to the constitutional claims.


Are the benefits of spray paint worth the costs in defacement of property by vandals? Will limits on the sale and possession of spray paint reduce graffiti by enough to justify the inconvenience they create for those who use the product without harming others? Will the vandals find an adequate supply in the suburbs or perhaps turn to substitutes such as automotive undercoating? These are important questions, but the Constitution commits their decision to the political branches of government. The power to decide, to be wrong as well as to be right on contestable issues, is both privilege and curse of democracy.

Not willing to accept the legislative answer to these questions, the district judge took evidence and gave his own answers. Chicago does not contend that the judge's answers are wrong; instead it contends that they are irrelevant, because holding the trial in the first place usurped the legislative power. Indeed so: a legislative decision "is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data." FCC v. Beach Communications, Inc., --- U.S. ----, ----, 113 S.Ct. 2096, 2102, 124 L.Ed.2d 211 (1993). See also, e.g., Nordlinger v. Hahn, --- U.S. ----, ----, 112 S.Ct. 2326, 2334, 120 L.Ed.2d 1 (1992); Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 463-65, 101 S.Ct. 715, 723-24, 66 L.Ed.2d 659 (1981); Vance v. Bradley, 440 U.S. 93, 111, 99 S.Ct. 939, 949-50, 59 L.Ed.2d 171 (1979). "[R]ational-basis review in equal protection analysis 'is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.' " Heller v. Doe, --- U.S. ----, ----, 113 S.Ct. 2637, 2642, 125 L.Ed.2d 257 (1993) (citations omitted). Even in litigation about torts and contracts, a court holds evidentiary hearings only when necessary to resolve material disputes of fact. In constitutional law, to say that such a dispute exists--indeed, to say that one may be imagined--is to require a decision for the state. Outside the realm of "heightened scrutiny" there is therefore never a role for evidentiary proceedings. By holding a trial, the district court conceded that there were material factual disputes--as there were. Two respected economists testified that the ordinance effectively raises the price of spray paint in Chicago, leading to a reduction in its use. How much of a reduction was hotly disputed, but no one can doubt that thoughtful people could conclude that there will be some reduction. See 44 Liquormart, Inc. v. Rhode Island, 39 F.3d 5, 7-8 (1st Cir.1994). The district court therefore should not have conducted a trial, and we disregard its conclusions.

A person challenging the regulation of economic transactions must "negative every conceivable basis which might support" the rule. Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S.Ct. 1001, 1006, 35 L.Ed.2d 351 (1973) (citation omitted). Chicago offers a "conceivable basis"--that is to say, a rational argument--for its law. Reducing the availability of spray paint has a tendency to reduce its use. Raising the price of spray paint has a similar tendency. The combination of the travel costs to procure spray paint from the suburbs, plus a fine when one is caught red-handed with a can, is the functional equivalent of a price increase. It may be, as the district court believed, that the taggers (as the vandals call themselves) are committed to graffiti as a way of life, but this affects only the degree to which the statute will be effective. Actually the statute may have a substantial effect even if the district court is right about the degree of taggers' commitment to their pastime. Persons who are already taggers may not change their behavior much, but it will become harder to recruit new taggers, and some taggers will leave the lifestyle sooner. The district court found that persons between the ages of 12 and 20 commit almost all of the graffiti vandalism; if the law restricts the age range to 13-19 it will have benefits even if none of the practicing taggers reduces his "output."

What is more, a legislature rationally may conclude that even the most committed of taggers will alter his behavior. That fines and other criminal punishments deter misconduct is a rational belief backed up by a significant body of evidence. See United States v. Turner, 998 F.2d 534, 536-37 (7th Cir.1993) (collecting studies). When prices of normal goods rise, people consume less. There are even constitutional...

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