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Brandt v. Village of Winnetka

September 30, 2009


The opinion of the court was delivered by: Judge Robert M. Dow, Jr.,


In this case, Plaintiff William A. Brandt, Jr. ("Plaintiff" or "Brandt") challenges the constitutionality of an ordinance enacted by Defendant Village of Winnetka ("Defendant" or "Village") pursuant to which the Village seeks to recoup costs that it incurs providing services to residents who host private events at which the guest of honor is a political figure who requires a high degree of security. In his operative second amended complaint, Plaintiff contends that the ordinance in question violates the First Amendment (Count I) and the Fourteenth Amendment (Count II) of the Constitution of the United States. Currently before the Court are Plaintiff's motion for summary judgment [85] and Defendant's motion for summary judgment [88]. For the reasons stated below, the Court denies Plaintiff's motion [85] and grants Defendant's motion [88] because, on the record before the Court, there is no live case or controversy over which the Court properly may exercise subject matter jurisdiction under Article III of the Constitution.

I. Background

A. Procedural Background

Plaintiff filed his first amended complaint in this action on February 28, 2006. Plaintiff followed, shortly thereafter, with a summary judgment motion on his facial challenge to the validity of Chapter 5.66 of the Winnetka Village Code (the "Ordinance"). At approximately the same time, Defendant countered with a motion to dismiss the first amended complaint for lack of standing and on the merits. Judge Pallmeyer, to whom this case was originally assigned, issued a memorandum opinion on March 15, 2007, in which she denied both motions. After Judge Pallmeyer denied Plaintiff's motion to certify two issues for interlocutory appeal on November 7, 2007, the case was reassigned to this Court. By the time that Plaintiff filed his second amended complaint, the Ordinance had been amended twice, in April and September of 2007. Plaintiff restated his claim that the Ordinance violates the First Amendment, but now has substituted an "as applied" challenge in place of the earlier "facial" challenge. In addition, Plaintiff's second amended complaint added a second count alleging a violation of his procedural and substantive due process rights under the Fourteenth Amendment. After attempts to settle the case failed, the parties filed the cross-motions for summary judgment that currently are pending before the Court.

B. Factual Background*fn1

William Brandt, Jr. is a resident of the Village of Winnetka, a municipality in the state of Illinois. Pl. SOF ¶ 1; Def. SOF ¶ 1. Brandt and his family have been interested and active in political affairs on the local, state and national level for many years. Pl. SOF ¶ 2. Over the years they have hosted political fundraisers for federal and state candidates and other events at Plaintiff's home in Winnetka. PL. SOF ¶ 3; Def. SOF ¶ 1. Brandt holds these events not only to raise money, but also to provide candidates with a forum to convey their political message. Pl. SOF ¶ 4. Some of these events have featured candidates and officeholders with official security details or other public figures with security requirements. Id. ¶ 6. The security details may require the allocation of policing resources, the closing of streets or other public areas, and the deployment of other municipal resources. Id. ¶ 8.

When the President, the First Lady, or a Presidential candidate has been invited to appear at an event in the Village, the Secret Service*fn2 has contacted the Winnetka Police Department to request security and related services. Pl. SOF ¶ 8; Def. SOF ¶ 42. The hosts of political events have no control over what safety requirements will be necessary or what demands official security details may place on a municipality because the security attachments do not discuss security plans with a host before an event. Pl. SOF ¶¶ 12, 14. The Winnetka Chief of Police is not aware of any legal mandate that the Village provide resources to the Secret Service. Pl. SOF ¶ 46. However, the Village accommodates the Secret Service's requests whenever possible, and has never refused to provide services requested by the Secret Service. Id. ¶ 47.

In 1996, Brandt hosted two fundraising events in his private residence, one attended by President Bill Clinton, the other by First Lady Hillary Clinton. Pl. SOF ¶ 16. Following those two events, the Village billed the Democratic National Committee ("DNC") to cover the costs incurred by the Village to provide a special police detail. Id. ¶ 17. The DNC was billed $10,831 for the event attended by President Clinton and $2,516 for event that Hillary Clinton attended. Id.

President Clinton's 1996 visit prompted the Village to discuss creating a special events ordinance, the goal of which, as first enacted, was cost recovery for providing services. Pl. SOF ¶ 21. That ordinance became Chapter 5.66 of the Winnetka Village Code, which initially was enacted in November of 2000. Id. After Plaintiff filed his original complaint in this action, the Winnetka Village Council amended the Ordinance twice. Id. ¶ 23. In its current form, the Ordinance's "Statement of Policy" provides that "[i]t is therefore the policy of the Village that any person who holds or sponsors an event that requires the Village to provide special services shall pay the Village's costs of providing such special services. It is also the policy of the Village that the allocation of the Village's resources and the setting of fees and charges for their use for special events shall be done pursuant to content neutral standards and procedures." Def. SOF ¶ 32. The term "Special Event" is defined as "an activity on public or private property that is not sponsored in whole or in part by the Village of Winnetka and that requires the Village to provide special services." Pl. SOF ¶ 25. The Ordinance defines "Special Services" as follows:

As used in this chapter, "special services," means the exclusive allocation of Village resources, including but not limited to Village personnel, equipment, rights-of-way or property, for use in conjunction with a specific event or activity, as requested by the host or sponsor of the event, or as requested by or on behalf of any person attending the event. Special services shall include, but not be limited to, any of the following: street closures; requiring police officers to stop or reroute traffic; special police protection; stationing emergency vehicles at or in the immediate vicinity of the event; exclusive use of the Village streets as a staging area or for event parking; additional street cleaning and garbage removal services; special signage, such as temporary no parking signs; the use of any Village building, equipment or other property for any purpose other than the normal daily operations of the Village; and otherwise providing exclusive services.

Def. SOF ¶ 33; Pl. SOF ¶ 26 (emphasis added). "Special services" may include requests by the Secret Service or other law enforcement personnel even if the request is made directly to the Village and without the knowledge or approval of the host of the event, in which case the cost of services provided still is to be billed to the host. Pl. SOF ¶¶ 49-50.

The Ordinance further requires that "No person shall conduct a special event without first having obtained a special event permit from the Village" and defines the form and content of special event permit applications, establishes review procedures, sets out standards for the review and issuance of permits, reserves certain rights to the Village, delineates the authority of the Village Manager, and provides for decisions on permit denials, revocations, and fees to be appealed to the Winnetka Village Council. Def. SOF ¶ 35. Permit applications "shall be delivered to the Chief of Police no less than fifteen (15) days prior to the proposed special event." Pl. SOF ¶ 27. The permit application must include "[a] description of the special event, including the street address of the event location, the date, time and duration of the event. Id. ¶ 28. The Ordinance delineates the "Content of Application," which must include a "statement signed by the applicant either agreeing to pay all fees and meet all other requirements of this chapter, or representing to the Village that the applicant is duly authorized to make such agreement on behalf of the person or organization holding or sponsoring the special event." Def. SOF ¶ 36; Pl. SOF ¶ 29.

The Ordinance includes provisions for Fees and Charges. "If the permit application is not submitted at least 15 days before the event, a non-refundable late fee of $250.00 shall be added to the application processing fee. The late fee shall not be credited against the user fee." Pl. SOF ¶ 38. "Upon completion of the special event, the Village shall prepare a detailed account of all special services provided for the special event and shall set the final user fee using the rates, fees and charges established as provided in this Chapter, plus a ten percent (10%) nonrefundable administrative fee. The Village shall provide the authorized and responsible person identified in the application with a copy of the detailed account of services and an invoice for the user fee, less the fee deposit." Id. ¶ ...

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