The opinion of the court was delivered by: Baker, Chief Judge.
This matter is currently before the court on the parties' cross
motions for summary judgment.
On October 8, 1982, the plaintiff, City of Watseka, Illinois
(hereinafter "Watseka"), filed a complaint in the Circuit Court
of the Twelfth Judicial Circuit of Iroquois County, Illinois. The
complaint sought a declaratory judgment that § 19-9 of the
Revised Ordinances of the City of Watseka (regulating the hours
of door-to-door solicitation) is a valid and constitutional
exercise of Watseka's police powers. Watseka also sought an
injunction, prohibiting the defendant Illinois Public Action
Council (hereinafter "IPAC") from violating the ordinance.
On November 29, 1982, IPAC and co-defendant, American Civil
Liberties Union of Illinois (ACLU) filed a Petition for Removal
in this court. The petition was granted and on December 6, 1982,
IPAC and ACLU filed their Answer and Counterclaim. In its
counterclaim, IPAC sought a declaratory judgment that Watseka's
ordinance is unconstitutional, both on its face and as applied to
IPAC, an injunction, prohibiting enforcement of the ordinance,
and compensatory and punitive damages.
On June 29, 1983, Watseka filed a Motion for Summary Judgment,
together with exhibits, affidavits, and a memorandum in support
of the motion. By its motion, Watseka seeks summary judgment in
its favor on the declaratory judgment action and dismissal of
IPAC's counterclaim. On July 19, 1983, IPAC and ACLU filed a
Motion in Opposition to Plaintiff's Motion for Summary Judgment
and Cross Motion for Summary Judgment, and a memorandum in
support of the defendants' motion. By their motion, the
defendants seek summary judgment in their favor on the
declaratory judgment action.
Summary judgment "shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed.R.Civ.P.
56(c). In determining whether summary judgment is proper, a court
ordinarily must view the record in the light most favorable to
the party opposing the motion, drawing all inferences most
favorable to that party. Rose v. Bridgeport Brass Co.,
487 F.2d 804, 808 (7th Cir. 1973).
IPAC's canvassing and solicitation activities are clearly
protected by the First Amendment to the United States
Constitution. See Village of Schaumburg v. Citizens for a Better
Environment, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 reh'g
denied, 445 U.S. 972, 100 S.Ct. 1668, 64 L.Ed.2d 250 (1980). It
is also well established that Watseka has the power to regulate
the activities of canvasers and solicitors if the regulation is
in furtherance of a legitimate governmental objective. See ACORN
v. City of Frontenac, 714 F.2d 813 (8th Cir. 1983). See e.g.,
Hynes v. Mayor of Oradell, 425 U.S. 610, 616-17, 96 S.Ct. 1755,
1758-59, 48 L.Ed.2d 243 (1976). However, the regulation of
canvassing and soliciting must be undertaken:
[W]ith due regard for the reality that solicitation
is characteristically intertwined with informative
and perhaps persuasive speech-seeking support for
particular causes or for particular views on
economic, political, or social issues, and for the
reality that without solicitation the flow of such
information and advocacy would likely cease.
Canvassers in such contacts are necessarily more than
solicitors for money.
Village of Schaumburg, 444 U.S. at 632, 100 S.Ct. at 833.
It is the duty of the court to determine the constitutional
validity of a municipality's regulation. Thomas v. Collins,
323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1945). Additionally,
"although a duly enacted statute normally carries with it a
presumption of constitutionality, when a regulation allegedly
infringes on the exercise of First Amendment rights, the statutes
proponents bears the burden of establishing the statute's
constitutionality." (Emphasis added.) ACORN, 714 F.2d at 817
citing Organization for a Better Austin v. Keefe, 402 U.S. 415,
419, 91 S.Ct. 1575, 1577, 29 L.Ed.2d 1 (1971). See also Village
of Schaumburg, 590 F.2d 220, 224 (7th Cir. 1978), aff'd,
444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980).
In Heffron v. International Society for Krishna Conscienceness,
Inc., 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981), the
United States Supreme Court stated that the validity of a
regulation which infringes upon the exercise of First Amendment
Freedoms will be sustained, "only if the regulation is narrowly
drawn to further a legitimate governmental objective unrelated to
the restriction of communication, and if it does not unduly
intrude upon the exercise of First Amendment rights. See also
Schad v. Borough of Mt. Ephriam, 452 U.S. 61, 68, 101 S.Ct. 2176,
2182, 68 L.Ed.2d 671 (1981); Village of Schaumburg, 444 U.S. at
637, 100 S.Ct. at 836; L. Tribe, American Constitutional Law, §
12-2 at 581-82 (1978).
In applying the Heffron test to this case, the court recognizes
that Watseka's interest in protecting the privacy of its
residents is a legitimate governmental objective. However, the
regulation enacted by the city unduly intrudes upon the
plaintiffs' exercise of their First Amendment rights. Cf.
Heffron, 452 U.S. at 658, 101 S.Ct. at 2569.