United States District Court, Northern District of Illinois, E.D
December 20, 1982
HORST KRAUS, PLAINTIFF,
VILLAGE OF BARRINGTON HILLS, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Grady, District Judge.
This is an action for an injunction restraining defendants, the
Village of Barrington Hills and its officials, from maintaining
police surveillance of the plaintiff Horst Kraus and his home and
from enforcing the zoning regulations of Barrington Hills. Before
the court is defendants' motion to dismiss. We grant the motion
in part and deny it in part.
We assume the facts as stated in the complaint. Plaintiff lives
with his wife, Gigi, in a home they own in Barrington Hills,
Illinois. He and his wife have organized "an association of
heterosexual couples, both married and unmarried, who come
together periodically for the purpose of discussion, association,
and experimentation relative to sexual mores and activities and
who do also engage in sexual activities with each others'
partners on a consentual [sic] basis." The organization is called
"The Happy Medium Unlimited," and plaintiff refers to its
members' practice of exchanging sexual partners as "swinging."
Two hundred fifty couples from Illinois, Wisconsin and Indiana
participate. They attend meetings at plaintiff's home and each
couple is asked to make a donation to help defray the cost of
dinner at the meeting.
In November 1981, plaintiff conferred with the Commander of the
Cook County Vice Squad and informed him fully of the
organization's swinging activities. The Commander decided that
swinging was legal so long as it was consensual and private. On
November 26, 1981, the Barrington Courier published a lengthy
expose of The Happy Medium. Two reporters, posing as a potential
swinging couple, gained admission to the plaintiff's home during
an organizational meeting and published a detailed account of the
members' actions. Four days later the Barrington Hills Village
Trustees met to consider whether action should be taken against
The Happy Medium. A newspaper quoted Trustee Louis Klein as
saying, "Let's do everything to get rid of it." Similar comments
were made by other defendants.
The Police Chief of Barrington Hills and the County Vice Squad
Sargeant reported to the Board that they could do nothing about
plaintiff's activities in his home. Nevertheless, the Board at
the November 30, 1981, meeting voted to take whatever action was
necessary to stop the activities of The Happy Medium.
On December 1, 1981, Mary C. Marre, the Building/Enforcement
Officer of Barrington Hills, wrote to plaintiff informing him
that operation of a private club in his home was a violation of
§ 5-5-2(A) of Barrington Hills' zoning ordinance. Section
5-11-12(B) of the ordinance provides that each day a violation
continues is a separate offense. Section 1-4-1 provides for a
fine of $500.00 for each offense. Plaintiff's residence is zoned
R-1 Residential. Plaintiff contends that Barrington Hills allows
other persons owning property zoned R-1 Residential to engage in
commercial ventures, such as the practice of law, running a
printing shop, and breeding and trading horses.
Barrington Hills has also employed its police in an attempt to
end the activities at plaintiff's home. Police officers have been
instructed to stop and ticket for the most trivial of violations
all cars turning into plaintiff's property. Squad cars are
stationed near the entrance to plaintiff's property on Saturday
nights during meetings of The Happy Medium. Cars entering and
leaving the property are surveilled and their license plate
Plaintiff contends that Barrington Hills is applying its zoning
ordinances arbitrarily, capriciously and selectively against him
in order to end the activities of The Happy Medium. Barrington
Hills' actions have allegedly violated plaintiff's First, Fourth
and Fourteenth Amendment rights. Plaintiff asks that the court
enjoin Barrington Hills and its agents from continuing their
actions against plaintiff, his guests, and The Happy Medium.
Plaintiff also asks for $1 million in compensatory and punitive
First Amendment Claims
To support a § 1983 claim, plaintiff must allege that a
constitutional right has been violated. Plaintiff claims the
activities on his premises are protected by the guarantees of
freedom of speech, assembly and association, and the right to
Defendants, in their brief, argue that the club is commercial
in nature and therefore has no fundamental constitutional privacy
or associational rights. They claim that the size of The Happy
Medium, its weekly meetings, and the fact that couples come from
at least three states rebuts any claim that a purely personal or
friendship relationship is involved. In support of their
contention, defendants cite Stratton v. Drumm, 445 F. Supp. 1305,
1978); Brown v. Haner, 410 F. Supp. 399, 401 (W.D.Va. 1976);
Cornelius v. Benevolent Protective Order of Elks, 382 F. Supp. 1182
(D.Conn. 1974); Paris Adult Theatre I v. Slaton,
413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973). While these cases do
indicate that associational activities that are purely commercial
do not come within the core protection of the right to associate,
they do not support the proposition that a club which accepts a
small donation from its members is thereby transformed into a
commercial enterprise. Consequently, we reject this argument.
Next, defendants argue that even if The Happy Medium is a
noncommercial organization, its activities — consensual exchange
of sexual partners — are not protected by the Constitution.
The First Amendment contemplates freedom of speech, press,
assembly and petition. By implication, it also contemplates
freedom of association — a derivative of the specified freedoms.
NAACP v. Alabama, ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163,
2 L.Ed.2d 1488 (1958).*fn1 Plaintiff contends that his right to
association with others in the way he desires is at stake in this
case. In cases involving freedom of speech, the Supreme Court has
protected advocacy which was not "directed to inciting or
producing imminent lawless action" or "likely to incite or
produce such action." Brandenburg v. Ohio, 395 U.S. 444, 447, 89
S.Ct. 1827, 1829, 23 L.Ed.2d 430 (1969). We believe this same
principle applies to the derivative freedom of association.
Absent associational activities which are illegal or would incite
illegal actions, the freedom of association is inviolate. Here,
the members of The Happy Medium participate in sexual activities
— including adultery — which many would consider immoral. The
Illinois statutes, however, only prohibit sexual activities that
are "open and notorious." Ill.Rev.Stats. ch. 38, §§ 11-7, 11-8.*fn2
One of the four basic premises underlying the Act was "protection
of the public from open and notorious conduct which disturbs the
peace, tends to promote breaches of the peace, or openly flouts
accepted standards of morality in the community." Ill.Rev.Stats.
ch. 38, § 11-1 et seq. (Smith-Hurd Committee Comments — 1961).
The Happy Medium conducts its meetings and activities entirely
within the residence of plaintiff. We do not believe that sexual
activities behind closed doors jeopardize the public peace; nor
does it appear at this stage of the proceeding that
the activity is "open" within the meaning of the criminal
The litmus test of constitutionality is not whether conduct is
distasteful. Advocating adultery has long been protected under
the First Amendment. Kingsley International Pictures Corp. v.
Regents of the University of the State of New York, 360 U.S. 684,
79 S.Ct. 1362, 3 L.Ed.2d 1512 (1959). The Supreme Court in
Cantwell v. Connecticut, 310 U.S. 296, 310, 60 S.Ct. 900, 906, 84
L.Ed. 1213 (1940), in discussing the First Amendment freedom of
religious faith and political belief, stated: "The essential
characteristic of these liberties is that under their shield many
types of life, character, opinion and belief can develop
unmolested and unobstructed." We believe that freedom of
association offers a similar shield.
Having said all this, it does not avail the plaintiff Kraus
that the conduct of the members of The Happy Medium is protected
by freedom of association. Kraus has failed to allege sufficient
injury to support his claim that his own freedom of association
has been infringed. It is well established that:
The Article III judicial power exists only to redress
or otherwise to protect against injury to the
complaining party, even though the court's judgment
may benefit others collaterally. A federal court's
jurisdiction therefore can be invoked only when the
plaintiff himself has suffered "some threatened or
actual injury resulting from the putatively illegal
action. . . ." Linda R.S. v. Richard D.,
410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973).
See Data Processing Service v. Camp, 397 U.S. 150,
151-54, 90 S.Ct. 827, 829-30, 25 L.Ed.2d 184 (1970).
Warth v. Seldin, 422 U.S. 490
, 499, 95 S.Ct. 2197, 2205, 45
L.Ed.2d 343 (1975). Plaintiff must allege a distinct and palpable
injury to himself.
Here, Kraus' alleged injury is that he is being prosecuted
discriminatorily for zoning ordinance violations, police cars are
stationed near the entrance to his property, his guests are
ticketed for trivial reasons, and his guests' cars are
surveilled. Of these alleged injuries, only the prosecution of
Kraus for zoning ordinance violations directly injures him.
Neither the stationing of the police cars on the public street
near the entrance to Kraus' property, nor the harassment or
surveillance of the cars entering or leaving the property, appear
to affect Kraus' associational rights in a direct way. That
police cars surveil the property apparently has not forced a
cessation of the meetings of The Happy Medium. Nor have members
been deterred from attending because police have stopped them for
minor violations. Plaintiff does not allege that his guests were
innocent of the violations for which they were stopped. License
plate numbers are public information and not protected from the
eyes of the police.*fn4 Plaintiff does not allege that by taking
down the numbers the police have successfully dissuaded members
of The Happy Medium from attending meetings.
This police conduct also does not injure whatever privacy
rights plaintiff may have to engage in sexual activities
behind the closed doors of his home.*fn5 By stopping cars for
violating traffic laws, taking down license plate numbers and
surveilling those entering plaintiff's property, the police have
not halted the activities of The Happy Medium. Here, the facts
are quite different from cases involving prosecution of persons
for using contraceptives, Griswold v. Connecticut, 381 U.S. 479,
85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), or for private possession
of obscene material, Stanley v. Georgia, 394 U.S. 557, 89 S.Ct.
1243, 22 L.Ed.2d 542 (1969), or even for sodomy, Doe v.
Commonwealth's Attorney, 403 F. Supp. 1199, aff'd mem.,
425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976). Plaintiff is not being
prosecuted for anything but a zoning ordinance violation. His
privacy is unaffected by the acts of the police — he need only
close the door and pull the drapes.
Enforcement of the Zoning Ordinance
It is clear that plaintiff stands to be injured for his alleged
violation of the Barrington Hills' zoning ordinance. The fine is
$500.00 per day.
We believe that the Pullman*fn6 abstention doctrine applies to
this aspect of the case. Pullman-type abstention is appropriate
where an unconstrued state statute is susceptible of a
construction by the state court "which might avoid in whole or in
part the necessity for federal constitutional adjudication, or at
least materially change the nature of the problem." Harrison v.
NAACP, 360 U.S. 167, 177, 79 S.Ct. 1025, 1030, 3 L.Ed.2d 1152
(1959). In applying Pullman-type abstention, the inquiry is two
pronged: (1) Is the ordinance under scrutiny unclear or
uncertain; (2) will state court resolution of the state issue
obviate or substantially modify the federal constitutional
question. The zoning ordinance here reads:
5-5-2: PERMITTED USES: Permitted uses of land or
buildings, as hereinafter listed, shall be permitted
in the districts indicated under the conditions
specified. Unless otherwise specifically set forth,
wherever a permitted use is named as a major category
in this Chapter, it shall be deemed to include all
and only those itemized uses listed under the said
major category in the R1 through R4 Districts, as set
forth in this Section. No building or zoning lot
shall be devoted to any use other than a use
permitted hereinafter in the zoning district in which
such building or zoning lot shall be located, with
the exception of the following:
Uses lawfully established on April 1, 1963, and
Special uses allowed in accordance with the
provisions of Section 5-5-3 hereof.
Uses lawfully established on April 1, 1963, and
rendered nonconforming thereafter, shall be subject
to the regulations of Chapter 9 of this Title.
(A) Permitted Uses, R1 District: The following uses
are permitted in the R1 District:
1. Single-family detached dwellings.
4. Educational (nonboarding) and cultural
a. Elementary and nursery schools, nonboarding.
b. High schools, nonboarding
c. Public libraries and public art galleries.
5. Recreational facilities:
a. Forest preserves.
b. Public parks.
6. Religious institutions:
a. Churches, chapels, temples and synagogues.
b. Rectories, parsonages and parish houses.
7. Signs, as regulated by Section 5-5-11
8. Accessory uses, incidental to and on the same or
an adjacent zoning or lots under one ownership, as
the principal use:
a. Agricultural buildings and structures.
b. Athletic fields, playgrounds and polo fields,
including stadium and grandstands.
c. Boathouses, private.
d. Garages and carports.
e. Greenhouses and conservatories, private.
f. Guest houses, private.
g. Home occupations.
h. Living quarters, detached, for persons
employed on the premises if occupied only by such
persons and their immediate family.
i. Mausoleums, crematories and co-lumbariums in
j. Playhouses and summer houses.
k. Roadside stands.
l. Sewage disposal units, individual, as
regulated by Section 5-3-8 of this Title.
The zoning ordinance attempts to specify the uses of R1 property
and states that only the listed uses are permitted. This
language, however, does not answer all questions as to what
activities are permissible. Obviously, the category, "Single
family detached dwelling," must allow the single family living in
the dwelling to engage in a wide variety of activities consistent
with single family living. Surely, for example, the family
members are allowed to invite guests into their home, even though
the ordinance does not specifically list "entertaining guests" as
a permitted use. It also seems likely that at least some meetings
of private clubs would be a permitted activity incident to the
use of a single family dwelling. Whether the meetings of The
Happy Medium are a permitted use in this case is a question which
will require interpretation of the ordinance. Neither side has
cited a zoning case which seems to provide a clear answer.*fn7
Therefore, the first prong of Pullman is satisfied.
The second prong — whether the state court interpretation of
the ordinance might obviate or substantially modify the federal
constitutional question*fn8 — is also satisfied. A state court
construction of the ordinance will greatly assist us in
determining whether defendants have applied it to plaintiff in a
discriminatory way, and whether the ordinance is being used to
chill his First Amendment rights. Consequently, we abstain from
considering plaintiff's claim that Barrington Hills has
unconstitutionally applied its zoning ordinance to him. Lewellyn
v. Gerhardt, 513 F.2d 184 (7th Cir. 1975).
Section 1985 Claim
Section 1985(3) provides that if two or more persons in any
state conspire to injure another person or his property or
deprive him of any right or privilege of a citizen of the United
States, the party so injured or deprived may have an action for
damages against the conspirators. Plaintiff alleges that the
defendants acted in concert to violate his First Amendment rights
and to subject him to an unconstitutional application of the
zoning ordinance. The analysis we have made of the § 1983 claim
applies to the § 1985 claim as well. Therefore, we dismiss the
First Amendment claims and abstain from deciding the zoning
Section 1981 Claims
In his complaint, plaintiff also cites 42 U.S.C. § 1981 as a
jurisdictional basis for this suit. Section 1981 provides that
"[a]ll persons within the jurisdiction of the United States shall
have the same right to the full and equal benefit of all laws and
proceedings for the security of persons as is enjoyed by white
citizens. . . ." The purpose
of the Act is to "uproot the institution of slavery and to
eradicate its badges and incidents." Winston v. Lear-Siegler,
Inc., 558 F.2d 1266 (6th Cir. 1977); see Cong. Globe, 36th Cong.,
1st Sess. 339-517 (1866). There are no allegations indicating
that race discrimination is at issue in this case. Therefore, we
dismiss plaintiff's § 1981 claim.
Plaintiff has failed to allege facts sufficient to support his
claims of abridgement of his freedom of speech, assembly and
association or his right to privacy. Therefore, we grant
Barrington Hills' motion to dismiss those claims. We also grant
Barrington Hills' motion to dismiss the § 1981 claim. We stay the
proceedings herein regarding the application of the Barrington
Hills' zoning ordinance to plaintiff while the parties pursue
appropriate state court remedies. England v. Louisiana School
Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11
L.Ed.2d 440 (1964).