prohibitions and thereby traps the innocent necessarily violates due process.
The statute's notice provisions also offend due process. The statute fails to require that anti-solicitation lists be organized in any particular manner so as to ensure brokers receive clear notice as to whom they may not "solicit." The record reveals that this deficiency has allowed community associations to serve brokers with lists which are randomly organized. Even when lists are not intentionally scrambled, they often contain subtle disorganization which increases the likelihood that brokers will inadvertently violate the statute. Once again, fear of prosecution causes brokers to "steer far wider" of the prohibited solicitations by not communicating at all with individuals in communities with anti-solicitation lists.
This fear is justifiable because in the past community organizations like BAPA have aggressively petitioned prosecutors to prosecute even unintentional errors. These prosecutions result from the fact that these community associations distribute lists that often contain disorganization, whether inadvertent or not, which may cause brokers mistakenly to solicit individuals on the list. These associations, which themselves served brokers with an inadequate list, then turn around and insist that these brokers be prosecuted for these inadvertent violations. Thus, the lack of specificity in the notice provision grants community associations too much control of the process. In doing so, the brokers' speech is impermissibly chilled.
The statute's defects are particularly intolerable in light of the criminal penalties authorized by the statute. See, e.g., Winters v. New York, 333 U.S. 507, 515, 92 L. Ed. 840, 68 S. Ct. 665 (1948) (requiring higher "standard of certainty" for statutes imposing criminal sanctions rather than civil penalties). An individual must be aware of the specific conduct which could subject him to criminal sanctions. Thus, the statute's failure to define the prohibited conduct with appropriate certainty renders its unconstitutional.
In response to the plaintiffs' arguments, the defendants simply state that the Seventh Circuit has twice rejected the vagueness claim in cases involving anti-solicitation ordinances. Specifically, they cite to Curtis v. Thompson, 840 F.2d 1291 (7th Cir. 1988), and South-Suburban Housing Center v. Greater South Suburban Bd. of Realtors, 935 F.2d 868 (7th Cir. 1991), as binding precedent on this Court. The defendants, however, overstate their case.
First, the Curtis v. Thompson decision has been vacated. It is, therefore, no longer the law of this case. Regardless, the Seventh Circuit's decision would not be binding on this Court since they were reached when this case was at the preliminary injunction stage. See Univ. of Texas v. Camenisch, 451 U.S. 390, 395, 68 L. Ed. 2d 175, 101 S. Ct. 1830 (1981) (findings of fact and conclusions of law made during decision on preliminary injunction not binding at trial on the merits); Wright, Miller & Kane, 11A Federal Practice & Procedure : Civil 2d § 2941 at 33 ("in deciding whether to grant permanent injunctive relief, a trial court is bound neither by its own decision respecting preliminary injunctive relief, not by that of the appellate court"). Since the appellate court considered the issue on an incomplete record, its brief treatment of the vagueness issue in a footnote has minimal relevance.
The defendants' citation to South Suburban is equally unpersuasive since that decision is readily distinguishable. For example, the ordinance at issue in South Suburban explicitly included a definition of "solicit" or "solicitation." As a result, the South Suburban ordinance clearly applied to goodwill advertisements and communications promoting other services provided by real estate brokerages. Thus, an advertisement offering free appraisals or seminars would have undoubtedly fallen within the scope of the South Suburban statute. Whether such advertisements are within the reach of the statute in the case at bar remains uncertain. Moreover, the South Suburban ordinance was explicitly limited to contacts at "the dwelling." The statute in the case at bar lacks similar constraints. Without restricting the statute to communications at the residence, the Pearson statute may even encompass the simple act of giving a business card at a public gathering, a train station gate, or any other public forum. As these examples demonstrate, the greater specificity and clarity of the language of the South Suburban ordinance differentiates it from the case at bar and renders the South Suburban holding inapplicable.
In short, the defendants arguments are completely unavailing. This Court has now had the benefit of a full trial on the merits and has directly heard the evidence; accordingly, it is in the best position to determine the effects of the statute as applied. Based on the evidence presented, this Court finds that the Illinois anti-solicitation statute as applied violates the Due Process Clause.
C. Equal Protection
Since the statute impermissibly infringes upon the plaintiffs' First Amendment rights, this Court need not address their final claim, but notes that the statute would also violate the Equal Protection Clause.
This Court finds that 720 ILCS 590/1 § 1(d) violates the First and Fourteenth Amendments of the United States Constitution. Accordingly, this Court enjoins the defendants and their agents from enforcing 720 ILCS 590/1 § 1(d).
May 14, 1997
BRIAN BARNETT DUFF, JUDGE
UNITED STATES DISTRICT COURT