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KRAUS v. VILLAGE OF BARRINGTON HILLS

December 20, 1982

HORST KRAUS, PLAINTIFF,
v.
VILLAGE OF BARRINGTON HILLS, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION

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.

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 numbers recorded.

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 damages.

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 privacy.

  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,
1309 (D.Conn.

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 statutes.*fn3

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. ...


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