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United States Labor Party v. Oremus

decided: April 24, 1980.


Appeal from the United States District Court for the Northern District of Illinois, Eastern Divison. No. 78-C-953 -- George N. Leighton, Judge.

Before Sprecher, Tone and Wood, Circuit Judges.

Author: Wood

Plaintiffs-appellants, the United States Labor Party (USLP), and its members,*fn1 appeal the dismissal of their first amended complaint for failure to state a claim for which relief could be granted. They also claim on appeal that the district court abused its discretion when it denied their motion to alter, amend or vacate the judgment and to grant leave to amend the complaint without prejudice to the filing of a new suit. We affirm.

The Facts

The events which are the subject of the complaint involve plaintiffs' attempts to sell the USLP newspaper, New Solidarity, and otherwise advocate their views while standing in the intersection of 79th Street and Harlem Avenue in the Village of Bridgeview.*fn2 Throughout the time period involved in the complaint, however, an Illinois state statute unqualifiedly and unambiguously prohibited intersection solicitation on the highways of the State of Illinois. The statute, Illinois Revised Statute, Chapter 951/2, ยง 11-1006(b) (1976), as amended effective January 1, 1976, provided that

No person shall stand on a highway for the purpose of soliciting employment, business or contributions from the occupant of any vehicle.

Plaintiffs do not contest the constitutionality of Section 11-1006(b). They argue, however, that actions taken by defendants, the Village of Bridgeview and several of its officers in their individual and official capacities, between June and November 1977 in preventing the USLP from soliciting in intersections deprived them of their rights protected by the First Amendment made applicable to the states by the Fourteenth Amendment, and the Due Process and Equal Protection Clauses of the Fourteenth Amendment. They seek declaratory and injunctive relief as well as damages.*fn3

Plaintiffs in May 1977 were soliciting their newspaper and advocating their views to persons in vehicles stopped momentarily at the intersection of 79th and Harlem. Village police interceded and informed plaintiffs that such solicitation could not be performed without a Village permit. A week or two later Richard Leebove, the legal director of the USLP telephoned Don Billig, the Clerk of the Village of Bridgeview. Billig informed Leebove that the Village required a permit for such solicitation. Thereafter, Leebove submitted applications for permits and on July 28, 1977, the USLP received the permits.

Beginning on July 29, members of USLP, armed with the proper permits, returned to the intersection of 79th and Harlem and again solicited occupants of vehicles. The solicitation continued until August 19, 1977 when the USLP was informed that their permits were revoked because of various complaints citizens of the Village had filed with the Village concerning the USLP members' activity in the intersection.

On September 1, 1977, a representative of USLP attended a Village council meeting to protest the Village's decision to prohibit USLP intersection solicitation. The USLP made their constitutional objections known at this meeting but the Village council indicated that the decision would not be changed. On September 23, the Village received a letter from the USLP requesting information regarding the revocation of the permits. Clerk Billig referred the plaintiffs to the Village's attorney, Marvin Glink. Pursuant to the plaintiffs' request for information a meeting was held on October 24. At that meeting the Village and the USLP reached an agreement concerning conditions under which the USLP would be permitted to resume their solicitation and advocacy activities in the intersection. Pursuant to this agreement, USLP members were to receive instructions on safe methods of intersection solicitation from Village police. In early November, the chief of the Village police, upon learning of the agreement, informed the Village council of the existence of the Illinois statutory prohibition. The Village, from that point on, enforced the ban on intersection solicitation within the Village.

Plaintiffs contest the Village officials' actions in first permitting and then prohibiting them from engaging in intersection solicitation. There appear to be two possible explanations for the Village officials' activities involving intersection solicitation prior to November 1977. First, the Village officials may have been unaware of the existence of the relatively new Section 11-1006(b). Alternatively, although it does not appear to be the case, they may have been aware of the statutory provision, but decided not to enforce it until November, 1977. We find, regardless of which of these two explanations is true, plaintiffs' complaint does not state any claim entitling them to relief.

Appellate Jurisdiction

As an initial matter defendants assert that this court is without jurisdiction to entertain the appeal. The defendants claim that plaintiffs' motion pursuant to Rule 59(e) of the Federal Rules of Civil Procedure requesting, in essence, the district court to reconsider its judgment dismissing the complaint, was not a proper motion and it did not toll the time for filing a notice of appeal. Thus, defendants argue that since the notice of appeal was filed more than thirty days after the entry of the district court's judgment dismissing the complaint, the appeal was untimely and this court lacks jurisdiction over the appeal.

A Rule 59(e) motion to alter or amend a judgment properly may be used to ask a district court to reconsider its judgment and correct errors of law. Dove v. Codesco, 569 F.2d 807, 809 (4th Cir. 1978); Hahn v. Becker, 551 F.2d 741, 745 (7th Cir. 1977). Further, a timely Rule 59(e) motion tolls the running of the time for filing a notice of appeal. Motteler v. J. A. Jones Construction Co., 447 F.2d 954 (7th Cir. 1971); Fed. R. App. P. 4(a). Since plaintiffs filed a proper Rule 59(e) motion within ten days of the entry of the district court's judgment and they filed their notice of ...

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