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DAUGHERTY v. DALEY

February 5, 1974

MARY JANE DAUGHERTY ET AL., PLAINTIFFS,
v.
RICHARD J. DALEY ET AL., DEFENDANTS.



Before Kiley, Circuit Judge, and Parsons and McGARR, District Judges.

The opinion of the court was delivered by: Parsons, District Judge.

MEMORANDUM OPINION AND ORDER

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 ...

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