United States District Court, Central District of Illinois
January 16, 1984
CITY OF WATSEKA, COUNTY OF IROQUOIS, AND STATE OF ILLINOIS, A HOME RULE MUNICIPALITY, PLAINTIFF,
ILLINOIS PUBLIC ACTION COUNCIL, AND AMERICAN LIBERTIES UNION, DEFENDANTS. ILLINOIS PUBLIC ACTION COUNCIL, PLAINTIFF, V. CITY OF WATSEKA, COUNTY OF IROQUOIS AND STATE OF ILLINOIS, A HOME RULE MUNICIPALITY, AND ERNEST A. GROVE, MAYOR OF WATSEKA INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, DEFENDANTS.
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.
The relevant facts are simple and undisputed. On October 15,
1979, Watseka passed an ordinance regulating solicitation within
the city limits. That part of the
ordinance which is at issue limits solicitation in private
residences in Watseka to the hours of 9:00 a.m. to 5:00 p.m.,
Monday through Saturday, and prohibits solicitation on holidays.
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.
In ACORN v. City of Frontenac, the United States Court of
Appeals for the Eighth Circuit found that Frontenac's
solicitation ordinance (which was similar to Watseka's) unduly
burdened the plaintiffs' First Amendment rights because the City
of Frontenac could have achieved its goal of preventing undue
annoyance of its residents through means less restrictive to the
constitutional freedoms than the means embodied in its
regulation. See 714 F.2d at 819. The court found that the city's
trespassing laws could be enforced against those who enter or
remain on private property after its owner had indicated to the
intruder that (s)he was not welcome. The court continued,
Furthermore, unlike the public transit patron in
Lehman v. City of Shaker Heights, 418 U.S. 298, 304,
94 S.Ct. 2714, 2717-18, 41 L.Ed.2d 770 (1974)
(plurality opinion); id. at 307-308, and the
unwilling target of the sound truck in Kovacs v.
Cooper, 336 U.S. 77, 86-87, 69 S.Ct. 448, 453, 93
L.Ed. 513 (1949), the resident in this case is not a
member of a captive audience. The solicitor or
canvaser has no right to make an uninvited entry into
a resident's home. Cf. Owen v. United States Post
Office Department, 397 U.S. 728, 90 S.Ct. 1484, 25
L.Ed.2d 786 (1970) (householder has no right to bar
entry of unwanted mail into home). If the resident is
not interested in receiving the particular
solicitor's message, he may indicate as much and
close the door. If the resident cares not to receive
messages from any solicitors or canvassers, he may
post a sign to that effect at his door or at the
entrance to his proprety. But Frontenac may not, in
the interest of achieving its legitimate objectives,
broadly prohibit the plaintiffs' activities when less
restrictive alternatives will satisfactorily
accomplish the same objectives.
We are not persuaded by Frontenac's argument that the
ordinance is valid since it allows ACORN and others
to solicit at alternative times, namely, from 9:00
a.m. to 6:00 p.m., Monday through Saturday.
Regardless of ACORN's argument that to canvass during
those hours would be fruitless, we note, as the
Supreme Court has noted, that "one is not to have the
exercise of his liberty of expression in appropriate
places abridged on the plea that it may be exercised
in some other place." (Emphasis added.)
ACORN, 714 F.2d at 819 citing Schneider v. State, 308 U.S. 146,
163, 60 S.Ct. 146, 151, 84 L.Ed. 155 (1939).
Just as the residents of Frontenac could rely on the city's
trespassing laws to ensure their privacy from unwanted
solicitors, the residents of Watseka may rely upon their city's
trespassing laws for protection. Additionally, the Watseka
residents wishing to avoid door-to-door solicitation all together
may do so by posting a "no solicitation" or "no trespassing" sign
at their door or at the entrance to their property. See
Ordinances of the City of Watseka §§ 19-6 to 19-8. Cf. Citizens
for a Better Environment v. Village of Olympia Fields,
511 F. Supp. 104, 107 (N.D.Ill. 1980).
Given that Watseka's ordinance already provides a comprehensive
registration and certification scheme for solicitors, it appears
that Watseka already has, in force, several less restrictive
alternatives to protect its citizens from unwanted canvassers or
solicitors. See Revised Ordinances of the City of Watseka, §§
19-2-19-4. Consequently, this court must conclude that the City
of Watseka's ordinance regulating canvassing and solicitation is
unconstitutional under the First Amendment because it unduly
burdens the defendants' right to freedom of speech and because
there exist several less restrictive means through which the city
may protect its residents from unwanted canvassers and
In Watseka's motion for summary judgment, the city advances the
issue of whether the ordinance in question, by its language,
applies to IPAC. The court concludes that it is unnecessary to
reach this issue because the city's ordinance is an
unconstitutional deprivation of free speech.
IT IS THEREFORE ORDERED that the plaintiff City of Watseka's
motion for summary judgment be, and hereby is, denied.
IT IS FURTHER ORDERED that the defendants' cross motions for
summary judgment be, and hereby is, granted.
IT IS FURTHER ORDERED that the plaintiffs are enjoined and
restrained from enforcing those provisions of the ordinance which
limit solicitation in private residences in Watseka to the hours
of 9:00 a.m. to 5:00 p.m. Monday through Saturday, and
prohibiting solicitation on holidays.
IT IS FURTHER ORDERED that the matter is set for hearing on the
issue of damages and all other pending matters on April 20, 1984
at 1:30 p.m.
ORDER ASSESSING DAMAGES FOR IPAC
This matter is before the court for the assessment of damages.
An evidentiary hearing was held on May 23, 1984, and the briefs
and arguments of counsel were finally submitted on August 13,
The court makes the further findings of fact that:
1. Illinois Public Action Council (IPAC) suffered a loss in
revenue by its inability to canvass in the City of Watseka in the
year 1981 of $1200.00.
2. IPAC suffered a loss in revenue by its inability to canvass
in the City of Watseka in the year 1982 of $1400.00.
3. IPAC suffered a loss in revenue by its inability to canvass
in the City of Watseka in the year 1983 of $2900.00.
4. The total gross revenue lost by IPAC in the years 1981
through 1983 was $5500.00.
5. IPAC had an overhead cost of forty percent which would
reduce its revenue lost to a net of $3300.00.
Preventing a person from exercising a First Amendment right is
a compensable element of damage in and of itself. "The court
should consider compensation for harm, if any, resulting from the
constitutional violation, and appropriate compensation for the
constitutional violation itself." Walsh v. Brewer, 733 F.2d 473,
477 (7th Cir., May 3, 1984); Owen v. Lash, 682 F.2d 648, 652-53
(6th Cir. 1982); see generally Lenard v. Argento, 699 F.2d 874,
891 (7th Cir. 1983); Kincaid v. Rusk, 670 F.2d 737, 746 (7th Cir.
1982). IPAC was prevented from exercising its First Amendment
rights in this case and the court finds that a sum of money which
will reasonably and fairly compensate IPAC for that loss is
Accordingly, IT IS ORDERED that the Clerk enter judgment in
favor of Illinois Public Action Council against the City of
Watseka in the sum of $8,300.00 and costs of suit.
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