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ROTHNER v. CITY OF CHICAGO

November 20, 1989

ERIC ROTHNER, d/b/a BELL VENDING and d/b/a CHICAGO GAME CO., Plaintiff,
v.
CITY OF CHICAGO, et al., Defendants



The opinion of the court was delivered by: BUA

 NICHOLAS J. BUA, UNITED STATES DISTRICT JUDGE

 Asserting a host of constitutional violations, plaintiff in this case seeks to invalidate a city ordinance which prohibits certain minors from playing coin-operated amusement devices during school hours. Defendants have moved to dismiss the complaint in its entirety. For the reasons stated herein, defendants' motion to dismiss is granted.

 FACTS

 Plaintiff Eric Rothner, d/b/a Bell Vending, and d/b/a Chicago Game Co., is in the business of distributing, leasing, and operating coin-operated amusement devices (commonly known as "video games") in various establishments in the City of Chicago. Rothner's businesses are licensed by the City. In 1988, the City Council passed an ordinance regulating the use of automatic amusement devices. That ordinance provides in pertinent part:

 
No person, firm, corporation, organization, or other legal entity shall permit, and it shall be unlawful for, any person under seventeen years of age to operate any automatic amusement device, except upon the premises of the city airports, between the hours of 8:00 a.m. and 3:00 p.m. on days in which the city's public schools are in session.

 Chicago, Ill., Mun. Code § 104.2-10 (1988). Rothner claims that after the ordinance went into effect, his business rapidly declined because a majority of his patrons are children under the age of seventeen. Consequently, Rothner filed the instant action against the City of Chicago, former Mayor Eugene Sawyer, Police Superintendent Leroy Martin, and their officers and agents. Rothner contends that the ordinance is unconstitutional on its face, violating the first, fourth, fifth, ninth, and fourteenth amendments to the United States Constitution, and sections 1, 2, 4, 5, 6, and 16 of Article I and section 6(e)(2) of Article VII of the Illinois Constitution of 1970.

 DISCUSSION

 I. First Amendment

 Rothner first argues that the city ordinance is overbroad, depriving children under the age of seventeen of their freedom of expression and association. The City contends, however, that Rothner does not have standing to assert the first amendment rights of these third parties.

 Of course, standing is the threshold issue concerning the authority of this court to entertain plaintiff's claims. Warth v. Seldin, 422 U.S. 490, 498, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975). The standing requirement involves a two-part inquiry. The court must first determine whether there is a "case or controversy" between the parties, subject to the court's Article III jurisdiction. Singleton v. Wulff, 428 U.S. 106, 112, 49 L. Ed. 2d 826, 96 S. Ct. 2868 (1976). The court then considers whether, as a matter of prudence, the plaintiff is the proper advocate of the rights asserted. Id.

 In order to satisfy the initial inquiry, the plaintiff must demonstrate a sufficiently concrete and personal stake in the outcome of the litigation -- namely, an actual or threatened injury which can be redressed by a decision in his favor. Id.; Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41, 48 L. Ed. 2d 450, 96 S. Ct. 1917 (1976). In the instant case, the city ordinance provides that it is unlawful to permit any person under seventeen years of age to play video games during school hours. Chicago, Ill., Mun.Code § 104.2-10 (1988). Rothner, as owner and operator of two video game establishments, is directly affected by the ordinance and is subject to its penalties. The City, on the other hand, wishes to further its stated interest of discouraging truancy. Unquestionably, the relationship between the parties is sufficiently adverse, and the case or controversy requirement is met.

 The second inquiry regarding standing -- what rights Rothner may assert -- is more difficult. Even though a federal court may have the constitutional power to hear the case, it should hesitate to adjudicate the rights of third parties who are not before the court. Singleton, 428 U.S. at 113. The general rule is that a plaintiff must assert his own rights, and not rest his claims on the rights of third parties. Warth, 422 U.S. at 499. Nonetheless, there are situations in which a plaintiff is permitted to assert the rights of third parties. Jus tertii standing, however, is dependent upon the existence of two factual elements. First, the relationship between the litigant and the third party must be such that the third party's right is "inextricably bound up with the activity the litigant wishes to pursue." Singleton, 428 U.S. at 114. Second, if the third party is unable to assert his rights on his own behalf, and his rights are subject to dilution if the plaintiff is not given standing, then jus tertii standing is proper. Moreover, in the context of the first amendment, the rules of standing have been relaxed because the very existence of an overbroad statute can cause persons who are not before the court to refrain from engaging in protected speech. Young v. American Mini Theatres, Inc., 427 U.S. 50, 59-60, 49 L. Ed. 2d 310, 96 S. Ct. 2440 (1976); Eisenstadt v. Baird, 405 U.S. 438, 445 n. 5, 31 L. Ed. 2d 349, 92 S. Ct. 1029 (1972); but see Broadrick v. Oklahoma, 413 U.S. 601, 615, 37 L. Ed. 2d 830, 93 S. Ct. 2908 (1973) (the scope of the first amendment exception narrows as the behavior encompassed by the statute "moves from 'pure speech' toward conduct").

 In any event, it is appropriate in this case for Rothner to assert the rights of his customers. See Carey v. Population Servs. Int'l, 431 U.S. 678, 683-84, 52 L. Ed. 2d 675, 97 S. Ct. 2010 (1977). Clearly, the activity Rothner seeks to pursue is inextricably bound up with the rights of the third parties who seek access to his services. The application of the law to Rothner necessarily implicates any rights of his patrons; the ability of these persons to fully exercise their purported rights depends on whether Rothner's operations are restricted. Therefore, a denial of standing could have an adverse effect upon the third parties' rights. After all, their rights are at stake in the present litigation in which the jus tertii claim is asserted. Because any injury suffered by Rothner could prevent the exercise of his customers' constitutional rights, he may properly assert the rights of those third parties. See Craig v. Boren, 429 U.S. 190, 195-96, 50 L. Ed. 2d 397, 97 S. Ct. 451 (1976) (vendor permitted to assert the constitutional rights of potential customers because the ...


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