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Horina v. City of Granite City

May 19, 2006

DONALD N. HORINA, PLAINTIFF,
v.
CITY OF GRANITE CITY, ILLINOIS, DEFENDANT.



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

MEMORANDUM and ORDER

Before this Court is plaintiff Donald Horina's amended motion for preliminary injunction (Doc. 53).

Factual Background and Procedural History

Horina is a Christian who feels obligated to tell others about their need to be "born again." He accomplishes his purpose primarily through public distribution of free religious literature, also known as gospel tracts. Horina offers the tracts on public sidewalks and places them on automobile windshields in a manner that does not impede pedestrian traffic.

On July 26, 2003, while on a public sidewalk in Granite City, Illinois, Horina placed a gospel tract through the open window of a vehicle, resulting in a Granite City police officer issuing a ticket to Horina for violating Granite City Ordinance Chapter 5.78.010,*fn1 the "Handbill Distribution Ordinance" (hereinafter "Ordinance 5.78.010").

On April 19, 2004, Horina appeared at an administrative hearing regarding the ticket. At the hearing, the citation was amended to a charge of trespass to vehicle under a different city ordinance, and Horina was fined $100.00.

On February 4, 2005, Horina initiated this case by filing a complaint for declaratory judgment, preliminary and permanent injunctive relief and compensatory damages (Doc. 1). He sought to enjoin Granite City from enforcing Ordinance 5.78.010 on the grounds that it unconstitutionally prohibited Horina and similarly-situated third persons from exercising their rights to freedom of speech and religion, and violated their equal protection rights under the First and Fourteenth Amendments ( See Doc. 1). In furtherance of this objective, on April 27, 2005, Horina filed a motion for a temporary and preliminary injunction (Doc. 7) seeking, among other things, preliminary and permanent injunctions restraining Granite City from enforcing Ordinance 5.78.010. On May 20, 2005, this Court held a hearing on that motion and, following that hearing, granted Horina's request for a preliminary injunction prohibiting Granite City from enforcing Ordinance 5.78.010 ( See Doc. 35).

In response, on November 15, 2005, Granite City repealed Ordinance 5.78.010 and established Granite City Ordinance 7861, entitled "An Ordinance Repealing the Existing Handbill and Leafleting Ordinance and Prohibiting Certain Leafleting" (hereinafter "Ordinance 7861")( See Doc. 56, Ex. 1). According to the preamble of Ordinance 7861, the purpose of the ordinance is to protect Granite City residents' "right to free speech, and the desire to be free of unwanted intrusion, trespass, harassment, and litter ...." Id. Apparently to further this objective, Ordinance 7861 enumerates several restrictions on the depositing, distributing, or selling of "handbills," which the ordinance defines as "any leaflet, pamphlet, brochure, notice, handout, circular, card, photograph, drawing, or advertisement, printed on paper or on cardboard." Id.

On February 6, 2006, dissatisfied with Granite City's revisions to its handbilling restrictions, Horina filed the amended motion for preliminary injunction that is presently before this Court (Doc. 53). Therein, Horina asserts that Ordinance 7861, like its predecessor, is unconstitutional. Specifically, Horina asserts that Ordinance 7861 is vague and overbroad, and curtails more speech than necessary to achieve any compelling, significant, or substantial governmental interest. Horina further argues that Granite City's enforcement of Ordinance 7861 causes him to be irreparably harmed by chilling his exercise of First Amendment rights to freedom of speech and religion.

Granite City filed its response (Doc. 56, supplemented at Doc. 58), and Horina filed his reply (Doc. 59). On March 24, 2006, this Court held a hearing on this matter at which the parties presented evidence and argument regarding the constitutionality of Ordinance 7861. These issues being fully briefed and argued, the Court GRANTS Horina's motion for preliminary injunction in regards to Ordinance 7861 for the reasons that follow.

Analysis

To obtain a preliminary injunction, the movant must show, and has the burden of proving, each of the following substantive elements: (1) a reasonable likelihood of success on the merits of the underlying claim; (2) that there is no adequate remedy at law; and (3) that the movant will suffer irreparable harm if the injunction is not granted. Ty, Inc. v. Jones Group, Inc. , 237 F.3d 891, 895 (7th Cir. 2001). If, and only if, the movant meets this threshold burden, the Court must consider two additional elements before issuing a preliminary injunction. The Court must balance the harms to the respective parties, with the required balance in favor of the movant being inversely proportional to the movant's likelihood of success on the merits; and the Court must consider the public interest by weighing the effect that granting the injunction will have on non-parties. Ferrell v. U.S. Dep't of Housing & Urban Dev. , 186 F.3d 805, 811 (7th Cir. 1999); Licini Italia Co. v. Grappolini , 288 F.3d 1035, 1038 (7th Cir. 2002).

Regarding the three elements that constitute Horina's threshold burden, when a party seeks a preliminary injunction on the basis of a potential First Amendment violation, the first element -- the likelihood of success on the merits -- often will be the determinative factor. Joelner v. Village of Washington Park, Illinois , 378 F.3d 613, 620 (7th Cir. 2004). This is because "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury," and money damages are therefore inadequate. See Elrod v. Burns , 427 U.S. 347, 373 (1976). Accordingly, if Horina ...


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