Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 79 C 4469 -- J. Sam Perry, Judge.
Before Fairchild, Chief Circuit Judge, Bauer, Circuit Judge, and Grant, Senior District Judge.*fn*
The defendants appeal an order of the district court permanently enjoining enforcement of two Village of Westmont ordinances. The first ordinance zones so-called "adult" movie theatres as a special use, and the second provides for the suspension or revocation of the license of any theatre that shows obscene movies. Plaintiff cross-appeals the district court's denial of attorneys' fees. We affirm the grant of the permanent injunction and reverse the denial of attorney's fees.
Plaintiff Entertainment Concepts, Inc., III operates a motion picture theatre known as Studio Eleven, Cinema I and Cinema II, located in Westmont, Illinois, a suburb of Chicago. Plaintiff has operated the theatre since December 22, 1978. The Studio Eleven is the only movie theatre in the Village of Westmont.
On September 21, 1979, plaintiff began advertising "Coming Soon, Adult Movies" on its marquee. The theatre scheduled the movie "Beneath the Valley of the Ultra-Vixens" to open on November 9, 1979.
On October 25, 1979, plaintiff filed suit in the district court seeking an injunction, declaratory relief, and damages under 42 U.S.C. § 1983. Plaintiff alleged that the defendants, who are various elected or appointed municipal officials of the Village of Westmont (hereinafter referred to collectively as "the Village"), had acted under color of their authority to deprive the plaintiff of its constitutionally protected rights under the First and Fourteenth Amendments to the Constitution of the United States. Plaintiff attacked the constitutionality of two ordinances of the Village of Westmont.
The first ordinance, referred to by the parties as the adult movie zoning ordinance, amends the Village's zoning ordinance. The zoning ordinance of the Village divides various types of business establishments into "permitted" and "special" uses. "Special" uses, in contrast to permitted ones, require the prior authorization of the Village Board of Trustees. Approval may be granted only after a public hearing conducted by the Zoning Board of Appeals, pursuant to public notice as required under Illinois law. Ill.Rev.Stat. ch. 24, §§ 11-13-1.1, -6, -7.
Prior to amendment, the Westmont zoning ordinance provided that indoor movie theatres were permitted uses in business districts B-1 and B-2. The amendment, passed on October 1, 1979, created a new category-"Adult movies indoor theatres"-and listed it as a special use. Code of Ordinances of the Village of Westmont § 7.03. The entire ordinance consists of a one-line addition to a chart of permitted and special uses, and the term "adult movies" is not defined.
The second ordinance, referred to by the parties as the license revocation ordinance, prohibits the exhibition of obscene motion pictures. The first two paragraphs of the ordinance, which are not challenged here, state the offense and provide a definition of obscenity.*fn1 Paragraphs 3 and 4 establish the following procedure and penalties for movies alleged to be obscene:
3. The Mayor shall appoint, subject to Board approval, three (3) Westmont residents to constitute a Movie Review Committee. The Committee shall review motion pictures publicly exhibited within the Village to determine whether or not they are obscene. If a majority of the Movie Review Committee determines a motion picture to be obscene, as defined by paragraph 2, they shall make a written report of their findings to the Mayor. The Mayor, upon receipt of a report by the Movie Review Committee declaring a motion picture obscene, shall invoke the penalties prescribed in paragraph 4 of this section. Nothing herein shall be construed as preventing or discouraging any party who claims to be aggrieved by application of this Ordinance from seeking prompt judicial review of any determination made hereunder.
4. Upon receipt of a report by the Movie Review Committee declaring a motion picture obscene, the Mayor shall conduct an adversary-type hearing at which the motion picture licensee shall have an opportunity to contest the report of the Movie Review Committee. Should the Mayor and Movie Review Committee find that the motion picture in question is in fact obscene, for the first offense, the Mayor shall suspend the motion picture license for a period not to exceed 90 days. For the second offense, the Mayor shall suspend the motion picture license for a period not to exceed 180 days. For the third offense, the Mayor shall permanently revoke the motion picture license.
Code of Ordinances of the Village of Westmont § 5.136.
After a hearing, the district court issued a permanent injunction enjoining the defendants from enforcing the licensing revocation ordinance and the adult movie zoning ordinance. The court denied plaintiff's request for declaratory relief and damages and dismissed the action without costs, each party to bear its own costs.
On December 11, 1979, plaintiff filed a motion for clarification and/or reconsideration of fees and a motion for attorneys' fees. After a hearing, the court denied both motions.
The Village, at the outset, challenges the propriety of adjudicating plaintiff's suit at this time. The Village contends that the lack of any proceedings against plaintiff at the time it filed suit renders the present case unripe for judicial resolution. We disagree.
The concept of ripeness is founded in the constitutional requirement that there must be a "case or controversy" before courts can act. That controversy must not be merely speculative; rather, it must be a concrete dispute between the parties "in order to avoid overstatement (and) to focus attention on a narrow problem." Currie, Federal Courts 91 (1975).
The requirement of concreteness, however, does not in and of itself require that the plaintiff be the subject of some administrative or judicial proceeding at the time of suit. The Supreme Court has often upheld the grant of injunctive relief against laws before prosecution. See, e.g., Doe v. Bolton, 410 U.S. 179, 188, 93 S. Ct. 739, 745, 35 L. Ed. 2d 201 (1973) (pregnant woman and doctors allowed to challenge an anti-abortion law); Epperson v. Arkansas, 393 U.S. 97, 89 S. Ct. 266, 21 L. Ed. 2d 228 (1968) (no criminal charges pending against school teacher attacking anti-evolution statute). Plaintiff is the only movie theatre in Westmont. The Village Board of Trustees amended the zoning ordinance one week after the theatre began advertising "adult movies coming soon." Similarly, the Board of Trustees amended the licensing revocation ordinance during the pendency of this suit. Even though it has not specifically threatened plaintiff with prosecution, the Village's conduct indicates more than a broad policy that it will enforce the laws generally. See Poe v. Ullman, 367 U.S. 497, 501, 81 S. Ct. 1752, 1754, 6 L. Ed. 2d 989 (1961). Plaintiff can reasonably assert that it fears enforcement of these two ordinances for specific conduct on its part. "Under such circumstances, this Court does not feel it "necessary that (plaintiff) first expose himself to actual arrest or prosecution to be entitled to challenge a statute he claims deters the exercise of his constitutional rights.' " Natco Theatres v. Ratner, 463 F. Supp. 1124, 1127 (S.D.N.Y.1979), quoting Steffel v. Thompson, 415 U.S. 452, 459, 94 S. Ct. 1209, 1215, 39 L. Ed. 2d 505 (1974). See Craig v. Boren, 429 U.S. 190, 194, 97 S. Ct. 451, 455, 50 L. Ed. 2d 397 (1976).
Plaintiff's challenges to the statutes here also do not depend on exhaustion of any administrative procedure. Plaintiff indeed challenges the necessity of having to go through any administrative procedure whatsoever. Plaintiff also alleges that the vagueness of the ordinance makes it uncertain whether the adult movie zoning ordinance applies to it at all; if it does apply, plaintiff attacks the ordinance's lack of standards. "In the area of freedom of expression it is well established that one has standing to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative office, whether or not his conduct could be proscribed by a properly drawn statute, and whether or not he applied for a license." Freedman v. Maryland, 380 U.S. 51, 56, 85 S. Ct. 734, 737, 13 L. Ed. 2d 649 (1965). Similarly, no film of plaintiff has been declared obscene. But plaintiff need not risk closure of its theatre in order to activate judicial review. Plaintiff alleges "infringement of a constitutional right by the administrative process itself." Moore v. East Cleveland, 431 U.S. 494, 528 n.3, 97 S. Ct. 1932, 1950, 52 L. Ed. 2d 531 (1977) (Burger, C. J., dissenting); Vance v. Universal Amusement Co., Inc., 445 U.S. 308, 100 S. Ct. 1156, 63 L. Ed. 2d 413 (1980). Such a "broadside attack" presents a justiciable controversy. See Times Film Corp. v. Chicago, 365 U.S. 43, 50, 81 S. Ct. 391, 395, 5 L. Ed. 2d 403 (1961).
We conclude that plaintiff's case is ripe for resolution at this time.
Plaintiff challenges the constitutionality of the Westmont adult movie zoning ordinance on several grounds. It contends (1) that the ordinance is so vague that it violates the Due Process clause of the Fourteenth Amendment; (2) that it is invalid under the First Amendment as a prior restraint on protected communication; and (3) that the classification of theatres on the basis of the content of the movies shown violates ...