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Horina v. City of Granite City

October 5, 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 judgment on the pleadings (Doc. 65).

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In response, on November 15, 2005, Granite City repealed Ordinance 5.78.010 and established Granite City Ordinance 7861, entitled "An Ordinance Repealing the Existing Handbill and Leafleting Ordinance and Prohibiting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 an amended motion for preliminary injunction (Doc. 53). In that motion, Horina asserted that Ordinance 7861, like its predecessor, is unconstitutional. Specifically, Horina asserted that Ordinance 7861 is vague and overbroad, and curtails more speech than necessary to achieve any compelling, significant, or substantial governmental interest. Horina further argued 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.

On March 24, 2006, this Court held a hearing on that motion and, on May 19, 2006, granted that motion and preliminarily enjoined Granite City from enforcing Ordinance 7861 (see Doc. 66).

Now before this Court is Horina's amended motion for judgment on the pleadings (Doc. 65). Granite City has filed its response (Doc. 69), to which Horina has filed a reply (Doc. 72). This matter being fully briefed, the Court now rules as follows.

Analysis

A motion for judgment on the pleadings pursuant to FEDERAL RULE OF CIVIL PROCEDURE 12(c) may be granted only if the moving party clearly establishes that no material issue of fact remains to be resolved and that he or she is entitled to judgment as a matter of law. Flora v. Home Fed. Savings & Loan Ass'n, 685 F.2d 209, 211 (7th Cir. 1982). The court may consider only matters presented in the pleadings and must view the facts in the light most favorable to the nonmoving party. Republic Steel Corp. v. Pennsylvania Eng'g Corp., 785 F.2d 174, 177 n. 2 (7th Cir. 1986). The court, however, is not bound by the nonmoving party's legal characterizations of the facts. Id.

In his amended motion for judgment on the pleadings (Doc. 65), Horina argues Ordinance 7861 is both facially unconstitutional and unconstitutional as applied to him. An "as applied" challenge consists of a challenge to a regulation's application only to the party before the court. City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 758-59 (1998). If a statute is found to be unconstitutional "as applied," the statute may not be applied to the challenger, but is otherwise enforceable. Id. If a statute is found to be facially unconstitutional, on the other hand, the statute may not be applied to anyone. Id. If this is the ...


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