Pearson v. Edgar

• Decision Date: 14 May 1997
• Docket Number: No. 86 C 2181.,86 C 2181.
• Citation: 965 F.Supp. 1104
• Parties: Alvin PEARSON, Brenda Curtis, Century 21 Pearson, Inc. Realtors®, an Illinois corporation, Plaintiffs, v. James EDGAR and Jim Ryan, Defendants.
• Court: U.S. District Court — Northern District of Illinois

Page 1104

965 F.Supp. 1104

Alvin PEARSON, Brenda Curtis, Century 21 Pearson, Inc. Realtors®, an Illinois corporation, Plaintiffs, v. James EDGAR and Jim Ryan, Defendants.

No. 86 C 2181.

United States District Court, N.D. Illinois, Eastern Division.

May 14, 1997.

Philip C. Stahl, David E. Schoenfeld, Christopher Raymond Hill, Grippo & Elden, Chicago, IL, for plaintiffs.

Jonathan Clark Green, Illinois Attorney General's Chicago, IL, for defendants.

MEMORANDUM OPINION

BRIAN BARNETT DUFF, District Judge.

This case comes before this Court for the fourth time. The plaintiffs, Alvin Pearson, Brenda Curtis, and Century 21 Pearson, Inc, originally commenced this action on March 31, 1986, seeking injunctive relief and a declaratory judgment that 720 ILCS 590/1 § 1(d) violates the First and Fourteenth Amendments of the United States Constitution. Following this Court's denial of the plaintiffs' motion for preliminary injunction, this case began its exhaustive appellate process. After two rounds of appeals, each affirming this Court, the case reached the United States Supreme Court, which then remanded it for further consideration in light of City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993). Given this directive, the Court held a bench trial in April 1996 to determine the constitutionality of the Illinois statute. After hearing the evidence and reviewing the parties' submissions, the Court finds that 720 ILCS 590/1 § 1(d) violates the First and Fourteenth Amendments. Below, this Court presents its findings of fact and conclusions of law in accordance with Federal Rule of Civil Procedure 52.

I. FINDINGS OF FACT

1. Plaintiffs Alvin Pearson("Pearson") and Brenda Curtis ("Curtis") are real estate brokers who work for Century 21 Pearson. Pls.' Ex. 1 ¶ 2, 2 ¶ 2.

2. Century 21 Pearson, Inc. Realtors® ("Century 21 Pearson") is a real estate brokerage business owned and operated by Pearson. Pls.' Ex. 1 ¶ 2. Century 21 Pearson serves part of the City of Chicago and its southern suburbs. Id.

3. The Defendants are Governor James Edgar and Attorney General Jim Ryan, in their official capacities. This case was originally brought against James R. Thompson, then-Governor of Illinois, Neil F. Hartigan, then-Attorney General of Illinois, Richard M. Daley, then-State's Attorney of Cook County, and the Beverly Area Planning Association ("BAPA"). The Cook County State's Attorney was dismissed, without prejudice in 1988. That same year, the case against BAPA ended after the entry of a consent decree. Governor Edgar and Attorney General Ryan were then substituted for their predecessors in office; they are the only remaining defendants in the case.

4. This case arose from Pearson's prosecution by the Cook County State's Attorney for violating 720 ILCS 590/1 § 1(d) ("the statute"), the statute prohibiting realtors from soliciting an owner to list or sell his home if the owner has provided notice of his desire not to be solicited. A real estate broker with Century 21 Pearson, Mardie Brown, had "cold-called" individuals on South Winchester Avenue to inquire whether the homeowners were considering selling their residence within the next two years and, if not, whether they knew of someone who was considering selling their residence in the next few years. Uncontested Fact ¶ 44. Several Beverly area residents who had signed the BAPA anti-solicitation list, and one who had not, complained about these calls to BAPA. Uncontested Fact ¶ 44. BAPA then contacted the State's Attorney Office and asked that a prosecution be initiated. Uncontested Fact ¶ 45.

5. Pearson, Brown, and Century 21 Pearson were charged with knowingly violating the anti-solicitation statute. Pearson, Brown, and Century 21 Pearson subsequently stipulated to the facts supporting the charges against them without admitting guilt. Each eventually received a disposition of supervision and a $100 fine. The criminal complaints against Pearson and Century 21 Pearson were subsequently dismissed in July 1988. Uncontested Fact ¶ 47.

6. Pearson, Curtis, and Century 21 Pearson then brought this suit in federal court claiming that the anti-solicitation statute violated their rights to freedom of speech, due process, and equal protection. They sought a preliminary injunction which this Court denied.

7. The Seventh Circuit affirmed the denial of the preliminary injunction in Curtis v. Thompson, 840 F.2d 1291 (7th Cir.1988).

8. Following that appeal, the case returned to this Court for a decision on the merits. The parties stipulated to a written record to be used to determine the constitutionality of the statute. Further review of the Seventh Circuit's decision in Curtis v. Thompson revealed, however, that Curtis established the law of the case and precluded an evidentiary hearing or consideration of additional evidence. Accordingly, this Court entered judgment dismissing the case in July 1989. Pearson v. Thompson, 1989 WL 88367 (N.D.Ill. July 26, 1989).

9. The Seventh Circuit affirmed the dismissal of the case in an unpublished opinion. Pearson v. Thompson, 1992 WL 25349 (7th Cir. Feb.13, 1992). The plaintiffs then petitioned for a writ of certiori, which the Supreme Court granted. In April 1993, the Supreme Court vacated the decision and remanded the case to the Seventh Circuit for further consideration in light of City of Cincinnati v. Discovery Network. Pearson v. Edgar, 507 U.S. 1015, 113 S.Ct. 1809, 123 L.Ed.2d 441 (1993).

10. The Seventh Circuit subsequently remanded the case to this Court with instructions to "conduct an evidentiary hearing to allow the parties to create the appropriate record for determining constitutionality of [720 ILCS 590/1 § 1(d)] under the new standards set out by Discovery Network." Pearson v. Thompson, 1993 WL 315601 (7th Cir. Aug.12, 1993).

11. Following the remand, this Court held a two day hearing in August 1994 based on the stipulated record.

12. On August 29, 1995, this Court concluded that the 1994 hearing had not provided the parties with an ample opportunity to create the appropriate record. This Court again reviewed the Seventh Circuit's most recent order and determined that it allowed the parties to expand the record beyond the stipulated facts. The parties were then directed to conduct discovery and prepare for trial. Pearson v. Edgar, 1995 WL 519748 (N.D.Ill. Aug.30, 1995).

13. This Court held a bench trial on April 15-26, 1996. The plaintiffs presented the following witnesses during the trial: Alvin Pearson; Brenda Curtis; Neal Beaulieu, co-owner of Century 21 Beaulieu and an attorney who defended real estate brokers accused of violating the statute; Frank J. Williams, owner of F.J. Williams Realty and former president of the Chicago Association of Realtors® and the South-Side Chicago Branch of the National Association for the Advancement of Colored People; Dr. Brian J.L. Berry, Professor of Political Economy at the University of Texas; William North, former Executive Vice President and General Counsel for the National Association of Realtors®; and Laurence Stanton the Executive Director of the BAPA. The plaintiffs also designated certain portions from the deposition testimony of Felix Zaczek, the owner of a cooperative mailing franchise; George Part, the Executive Vice President of the South/Southwest Association of Realtors®; Sherlynn Reid, Director of Community Relations for the Village of Oak Park; Joseph Martin, Executive Director of the Housing Coalition of the Southern Suburbs; William Biros, a real estate broker who sells property in the Beverly area; and Clayton Daughenbaugh of the Institute for Community Empowerment.

14. The defendants presented the following witnesses during the trial: Laurence Stanton, and Dr. Calvin Bradford, a private consultant on issues of community reinvestment and development as well as fair housing and lending. The Defendants also designated portions of the depositions of Zaczek, Pat, Reid, Martin, Biros, and Daughenbaugh. The following facts are based on the evidence presented by the plaintiffs and defendants during the trial.

15. The Illinois anti-solicitation statute, 720 ILCS 590/1(d), provides in relevant part:

§ 1. It shall be unlawful for any person or corporation knowingly

(d) To solicit any owner of residential property to sell or list such residential property at any time after such person or corporation has notice that such owner does not desire to sell such residential property. For the purpose of this subsection, notice must be provided as follows:

(1) The notice may be given by the owner personally or by a third party in the owner's name, either in the form of an individual notice or a list, provided it complies with this subsection.

(2) Such notice shall be explicit as to whether each owner on the notice seeks to avoid both solicitation for listing and sale, or only for listing, or only for sale, as well as the period of time for which any avoidance is desired. The notice shall be dated and either of the following shall apply: (A) each owner shall have signed the notice or (B) the person or entity preparing the notice shall provide an accompanying affidavit to the effect that all the names on the notice are, in fact, genuine as to the identity of the persons listed and that such persons have requested not to be solicited as indicated.

(3) The individual notice, or notice in the form of a list with the accompanying affidavit, shall be served personally or by certified or registered mail, return receipt requested.

16. A broker who violates tie statute may be imprisoned for up to one year and fined up to one thousand dollars. 720 ILCS 590/2(a) (1993); 730 ILCS 5/5-8-3(a)(1) (1993); 730 ILCS 5/5-9-1(a)(2) (1997 Supp.). A second conviction provides for a sentence of one to three years and a fine up to ten thousand dollars. 720 ILCS 590/2 (1993); 730 ILCS 5/5-8-1(a)(7) (1997 Supp); 730 ILCS 5/5-9-1(a)(1) (1997 Supp.).

17. A...