Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 08 C 555-David H. Coar, Judge, No. 08 C 3017-Wayne R. Andersen, Judge.
The opinion of the court was delivered by: Posner, Circuit Judge.
SUBMITTED OCTOBER 2, 2009
Before BAUER, POSNER, and SYKES, Circuit Judges.
These consolidated appeals bring before us for the second time challenges to the constitutionality of an ordinance of Calumet City, Illinois, that forbids the sale of a house without an inspection to determine whether it is in compliance with the City's building code. Calumet City Code § 14-1. The previous appeal was from a judgment in favor of real estate brokers who had challenged the ordinance. We ordered the case dismissed because the brokers lacked standing to challenge the ordinance. MainStreet Organization of Realtors v. Calumet City, 505 F.3d 742 (7th Cir. 2007). If anyone's constitutional rights were infringed, they were the rights of a homeowner who wanted to sell his house without inspection, and the brokers did not have standing to litigate rights belonging to their clients. The panel majority based this conclusion on the "prudential" doctrine of standing rather than on Article III of the Constitution; Judge Sykes, in a concurring opinion, ex-pressed the view that the brokers also lacked Article III standing. 505 F.3d at 749.
The standing problem is solved in the cases before us, which are brought by and on behalf of residents of Calumet City who were prevented from or delayed in selling their houses by the ordinance. The district judges dis-missed the suits for failure to state a claim.
Both suits challenge the constitutionality of the ordinance "on its face," a phrase of uncertain meaning, as we pointed out in A Woman's Choice-East Side Women's Clinic v. Newman, 305 F.3d 684, 687 (7th Cir. 2002). What the plaintiffs seem to mean by it is that "no set of circumstances exists under which the [ordinance] would be valid," which is the definition in United States v. Salerno, 481 U.S. 739, 745 (1987); see also United States v. Nagel, 559 F.3d 756, 764-65 (7th Cir. 2009); Rancho Viejo, LLC v. Norton, 323 F.3d 1062, 1077-78 (D.C. Cir. 2003). The Supreme Court is not sure about the definition, however, Washington State Grange v. Washington State Republican Party, 128 S.Ct. 1184, 1190 (2008). Nor are we, as we indicated in Woman's Choice.
One way to think of condemning a statute "on its face" is as an exception to the principle that a statute should if possible be interpreted in such a way as to avoid its being held unconstitutional. See, e.g., Rancho Viejo, LLC v. Norton, supra, 323 F.3d at 1077-78. Sometimes courts refuse to adopt a narrowing interpretation, or to sever an objectionable provision and allow the rest to stand, and so strike down the entire statute even if applying just part of it to the particular facts of the case would not have raised a serious constitutional question.
In some cases statutes are invalidated as unconstitutional on their face because of a supposed in terrorem effect; that is the doctrine of Thornhill v. Alabama, 310 U.S. 88, 97 (1940); see Church of the American Knights of the Ku Klux Klan v. City of Gary, 334 F.3d 676, 683 (7th Cir. 2003), which permits a person to challenge a statute limiting free speech even though his particular speech, though not that of others within the scope of the statute, could constitutionally be suppressed. And finally it is always an option for a plaintiff to challenge a statute without dwelling on particulars of his case that might invalidate the application of the statute to him. That is the course that the plaintiffs in these cases have chosen. They don't argue that the City unreasonably delayed the sale of their property or unreasonably prevented the sale; they argue that even punctilious compliance with the procedural safeguards created by the ordinance cannot protect their constitutional rights. They are challenging the ordinance as written.
They have an uphill fight. "Point of sale" ordinances such as this one are common and have withstood constitutional attack in all cases that we know of in which the ordinance avoided invalidation under the Fourth Amendment by requiring that the city's inspectors obtain a warrant to inspect a house over the owner's objection. Joy Management Co. v. City of Detroit, 455 N.W.2d 55, 57-58 (Mich. App. 1990); Butcher v. City of Detroit, 347 N.W.2d 702, 707-08 (Mich. App. 1984); Hometown Co-operative Apartments v. City of Hometown, 515 F. Supp. 502, 504 (N.D. Ill. 1981); Currier v. City of Pasadena, 121 Cal. Rptr. 913, 917-18 (App. 1975); cf. Greater New Haven Property Owners Ass'n v. City of New Haven, 951 A.2d 551, 562-66 (Conn. 2008); Tobin v. City of Peoria, 939 F. Supp. 628, 633 (C.D. Ill. 1996); Dome Realty, Inc. v. City of Paterson, 416 A.2d 334, 349-50 (N.J. 1980). That means all cases other than Wilson v. City of Cincinnati, 346 N.E.2d 666, 671 (Ohio 1976), and Hometown Co-operative Apartments v. City of Hometown, 495 F. Supp. 55, 60 (N.D. Ill. 1980). Calumet City's ordinance contains such a requirement.
The plaintiffs appeal mainly to the due process clause of the Fourteenth Amendment, which so far as bears on their case forbids a state or local government to deprive a person of property without due process of law. No court thinks, however, that this means the state can't regulate property-can't for example enact building codes and zoning regulations even though such measures limit the property owner's right to do what he wants with his property. Village of Euclid v. Amber Realty Co., 272 U.S. 365, 394-95 (1926), so held and has been followed in innumerable cases. See, e.g., Town of Rhine v. Bizzell, 751 N.W.2d 780, 793-96 (Wis. 2008); Napleton v. Village of Hinsdale, 891 N.E.2d 839, 853 (Ill. 2008); General Auto Service Station v. City of Chicago, 526 F.3d 991, 1000-01 (7th Cir. 2008); Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461, 465-66 (7th Cir. 1988); Albery v. Reddig, 718 F.2d 245, 250-51 (7th Cir. 1983); Davet v. City of Cleveland, 456 F.3d 549, 552-53 (6th Cir. 2006). The principle is illustrated by a notable recent decision upholding the validity of an ordinance that prohibited keeping more than three dogs on property in a residential district. Luper v. City of Wasilla, 215 P.3d 342, 348-49 (Alaska 2009); see also Greater Chicago Combine & Center, Inc. v. Chicago, 431 F.3d 1065, 1072 (7th Cir. 2005) (keeping pigeons in residential areas); Hull v. Scruggs, 2 So. 2d 543 (Miss. 1941) (property owner can kill trespassing dog that has irresistible urge to suck eggs).
What is true is that a regulation may so constrict the rights of a property owner as to be deemed a "regulatory taking," entitling the owner to compensation under the takings clause of the Fifth Amendment for the diminution of the market value of his property. Hodel v. Irving, 481 U.S. 704, 716-17 (1987); but cf. Andrus v. Allard, 444 U.S. 51, 64-68 (1979). And the Supreme Court has held that the takings clause is made applicable to state action by the Fourteenth Amendment, e.g., Kelo v. City of New London, 545 U.S. 469, 477-80 (2005). But our plaintiffs aren't proceeding under the takings clause. Their argument is that the restrictions that the ordinance places on their property rights are irrational and therefore deprive them of property without due process of law, entitling them to enjoin the ordinance rather than just insist on compensation. Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 536-37, 540-43 (2005); Cavel International, Inc. v. Madigan, 500 F.3d 551, 556 (7th Cir. 2007); Greater Chicago Combine & Center, Inc. v. City of Chicago, supra, 431 F.3d at 1071-72; Guggenheim v. City of Goleta, 582 F.3d 996, 1030-31 (9th Cir. 2009).
But building codes, to which the challenged ordinance is ancillary, cannot be thought irrational. They do increase the cost of property (as do other conventional regulations of property), but if reasonably well designed they also increase its value. Without them more buildings would catch fire, collapse, become unsightly, attract squatters, or cause environmental damage and by doing any of these things reduce the value of other buildings in the neighborhood. Assuring full compliance with building codes is difficult after a building is built, because most violations are committed inside the building and thus out of sight until a violation results in damage visible from the outside. Hence the ordinance, another objective of which is to prevent the surreptitious conversion of single-family into multi-family residences (for example by the owner's constructing a second kitchen or additional bathrooms), in violation of zoning codes the constitutionality of which is not questioned.
All this seems eminently reasonable (as reasonable as conditioning the transfer of title to real estate on payment of any real estate taxes due on the property-another common restriction on the sale of property), and indeed the plaintiffs do not, except in passing, challenge the principle of point of sale ordinances. Their focus is on the procedural adequacy of the method by which Calumet City's ordinance is enforced. They say it fails to protect a homeowner from unreasonable limitations on his property rights; one of those rights is the right to sell the property. But they fail to indicate concretely what the ordinance would have to provide in order to pass a workable test of reasonableness. It provides the conventional procedural safeguards and if these are inadequate we don't know what adequacy requires.
The ordinance requires a property owner to notify the City government of a proposed sale of his property. The City has 28 days after receiving the notice to conduct a compliance inspection. During that period it must notify the owner of its intention to conduct the inspection. If he responds that he won't consent to an inspection, the City has 10 days within which to get a warrant from a judge, limited to authorizing an inspection for compliance with the building code. The City's ...